Minister of Cooperative Governance and Traditional Affairs and Others v Sigcau and Others (40750/2014) [2015] ZAGPPHC 764 (20 November 2015)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

20/11/2015

CASE NO: 40750/2014

In the matter between:

THE MINISTER OF COOPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS First Applicant

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Second Applicant

THE COMMISSION ON TRADITIONAL LEADERSHIP DISPUTES AND CLAIMS Third Applicant

and

WEZIZWE FEZIWE SIGCAU First Respondent

LOMBEKISO MAKHOSATSINI MASOBHUZA Second Respondent

ZANUZUKO TYELOVUYO SIGCAU Third Respondent

NATIONAL HOUSE OF TRADITIONAL LEADERS Fourth Respondent

HOUSE OF TRADITIONAL LEADERS (EASTERN CAPE) Fifth Respondent

JUDGMENT

MURPHY J

1. This application raises difficult issues in relation to a long-running dispute concerning the traditional leadership of the amaMpondo aseQaukeni, a traditional community residing in the vicinity of Lusikisiki in the Eastern Cape.

2. The applicants are the Minister of Cooperative Governance and Traditional Affairs (“the Minister”), the President of the Republic of South Africa (“the President”) and the Commission on Traditional Leadership Disputes and Claims (“the Commission”). They seek three declaratory orders. The first is an order declaring that the first respondent, Ms Wezizwe Sigcau, has no right to claim the position of queen of the amaMpondo aseQaukeni. The second is an order declaring that the President is required and empowered only to implement the decision of the Commission of 21 January 2010 upholding the claim of the third respondent, Mr Zanuzuko Sigcau, to be the rightful king of the amaMpondo aseQaukeni. And the third is a declarator that section 26(2)(a) of the Traditional Leadership and Governance Framework Act 41 of 2003 (“the Act”), prior to its amendment by the Traditional Leadership and Governance Framework Amendment Act 23 of 2009 (“the Amendment Act”), does not permit, require, or empower the President to identify and follow a process of consultation with the royal family of amaMpondo

aseQaukeni before implementing the Commission’s decision; and only requires the President to publicise the decision of the

Commission, and issue a certificate of recognition under section 9(2) of the Act.

3. The second respondent, Ms Lombekiso Sigcau, is the great wife of the late Chief Justice Sigcau, who prior to the enactment of the Act was paramount chief of the amaMpondo aseQaukeni. In her capacity as the great wife she nominated the first respondent, her eldest daughter, to succeed to the traditional leadership position vacated by the death of Justice Sigcau.

4. The fourth respondent is the National House of Traditional Leaders established in terms of section 2 of the National House of

Traditional Leaders Act of 2009. The fifth respondent is the House of Traditional Leaders (Eastern Cape). Like the third respondent, the fourth and the fifth respondent have played no part in the present proceedings and can be taken to have decided to abide by the decision of the court. I accordingly will refer to the first and second respondents collectively as “the respondents”.

5. In April 2008 the Commission determined that the then existing paramountcy of the amaMpondo aseQaukeni (designated as such under

apartheid legislation) would henceforth be recognised as a “kingship” under the Act. Following a further process, the Commission, some two years later, on 21 January 2010, determined that the third respondent, Zanuzuko Sigcau, was the rightful king of the amaMpondo aseQaukeni in accordance with customary law, the customs of the amaMpondo and the provisions of the Act. The decision of the Commission was conveyed to the President in terms of section 26(2) of the Act for implementation. The President made the decision public by means of a notice promulgated in Government Gazette 33732 on 5 November 2010.

6. Justice Sigcau challenged the decision of the Commission in this court. The application was not successful and leave to appeal was refused by both this court and the Supreme Court of Appeal. The Constitutional Court, however, granted leave to appeal and upheld the appeal on the ground that when the President implemented the decision of the Commission to recognise the third respondent as king, by way of the notice in the Gazette, he acted incorrectly in terms of the amendments introduced by the Amendment Act, which were not applicable to the facts of this dispute.

7. The judgment of the Constitutional Court is reported as Sigcau v President of the Republic of South Africa and Others.[1] The court referred in its judgment to the Act prior to amendment as “the old Act” and to that subsequent to the amendments as “the new Act”. It will be convenient to retain the same nomenclature. The Commission investigated and made its decision

recognising the third respondent as king, on 21 January 2010, before the new Act came into operation on 25 January 2010. The Commission’s

procedures were thus initiated and substantially completed under the old Act. The ordinary rule of our law is that statutes operate only prospectively. Where amendments only come into effect after old procedures have been initiated, the old procedure remains intact, unless a contrary intention is clear from the amendment.[2] Hence, the implementation of the Commission’s decision taken under the old Act could not be done under the provisions of the new Act. The court accordingly held that the President’s notice had to be set aside as he had purported to exercise powers not conferred upon him by the provisions of the old Act. He appeared to have made a decision in relation to what was assumed to be a “recommendation” by the Commission, whereas under the old Act the power to make the decision vested in the Commission.

8. In view of its finding regarding the publication of the notice in the Gazette, the Constitutional Court considered it unnecessary to decide three other issues that were before it in the application. Firstly, whether the President needed to follow the consultative process contemplated in section 9 and 10 of the Act before implementing the Commission’s decision; secondly, whether the contemplated consultative process had been substantially done; and thirdly whether the Commission had substantively erred in its approach and finding and whether the decision of the Commission should be reviewed and set aside. The court set aside the order of this court as well as the notice of the President, but did not set aside the decision of the Commission.

9. The order of the Constitutional Court has left some uncertainty about firstly the status of the application by Justice Sigcau to review the decision of the Commission, which was dismissed by this court, and secondly the steps to be taken by the President to implement the Commission’s decision. The situation has been further complicated by the fact that Justice Sigcau died on 27 March 2013, a month after the case was argued before the Constitutional Court, but two months before the judgment was handed down on 13 June 2013. The second respondent took the view that the Constitutional Court had vindicated Justice Sigcau’s position as king. She then nominated the first respondent to be queen. The nomination was accepted by a meeting of 12 persons, family members of Justice Sigcau, held at the Qaukeni Great Place on 13 October 2013. Correspondence was then addressed by the second respondent to the President in October 2014, and later in February 2014, calling upon him to recognise the first respondent as queen of the amaMpondo aseQaukeni.

10. The attorney of the President responded to the second respondent in a detailed letter, dated 29 April 2014, pointing out that the Constitutional Court had not affirmed the claim of Justice Sigcau as king, had not set aside the decisions of the Commission establishing the old paramountcy as a kingship and recognising the third respondent as king, but had merely set aside the notice of the President on the sole basis that he had acted under the provisions of the new Act when he should have applied the provisions of the old Act. The attorney added that the process whereby the first respondent was nominated as queen appeared to him to be inadequate.

11. The upshot of this is that there are now three key issues that remain unresolved or have created confusion. First, there are still two claimants for the position of monarch of the amaMpondo aseQaukeni. Second, there is doubt as to whether the President has the power to do anything other than implement the decision of the Commission by way of a notice in the Gazette recognising the king or queen and the issuing of a certificate of recognition. And, thirdly, it is not clear whether the President’s duty to implement the Commission’s decision requires him to follow a separate, additional and independent process of consultation with the royal household. The uncertainty has prompted the applicants to approach this court for the declaratory relief they seek.

12. The judgment of the Constitutional Court succinctly and lucidly sets out the constitutional and legal framework as well as the main historical events and factual background forming the context of the dispute. In the interests of completeness and convenience it will be helpful to narrate them again in this judgment and to elaborate upon certain facts and legal provisions that have assumed greater relevance or deserve emphasis in the light of subsequent events.

The constitutional and legislative framework

13. Sections 211 of the Constitution provides for the recognition of traditional leadership as follows:

“(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) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.

Section 212 of the Constitution governs the role of traditional leaders. It provides:

(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.”

14. The Act provides the framework envisaged in section 212(1) of the Constitution. As already explained, it was amended by the Amendment Act, which came into effect on 25 January 2010. The Act provides for the recognition of traditional communities.[3] A community may be recognised as a traditional community if it is subject to a system of traditional leadership in terms of that

community’s customs and observes a system of customary law. The recognition of traditional communities is done at provincial level by the Premier of the province. The Premier may, by notice in the Provincial Gazette, in accordance with provincial legislation and after consultation with the provincial house of traditional leaders in the province, the community, and, if applicable, the monarch under whose authority that community would fall, recognise a community as a traditional community. Once the Premier has recognised a traditional community, that traditional community must establish a traditional council with no more than 30 members.[4] The traditional council has various statutory functions, including: administering the affairs of the traditional community in accordance

with customs and tradition; facilitating the involvement of the traditional community in the development or amendment of the integrated development plan of a municipality in whose area that community resides; participating in the development of policy, legislation and development programmes at local level; and performing the functions conferred by customary law, customs and statutory law consistent with the Constitution.[5]

15. The Act, as amended, recognises four leadership positions within the institution of traditional leadership: kingship or queenship;

principal traditional leadership; senior traditional leadership; and headmanship.[6] As we are concerned here only with the position of the kingship or queenship of the amaMpondo aseQaukeni, it is not necessary to analyse the provisions dealing with the different ranks of leadership.

16. Section 3 of the Amendment Act inserted section 2A of the Act dealing with the recognition of kingships or queenships. Its provisions were not applicable when the Commission made its decision recognising the kingship of the amaMpondo aseQaukeni. It nevertheless provides insight into the legislative intent in relation to kingships. In terms of section 2A of the Act, a number of traditional communities that are grouped together may be recognised as a kingship or queenship if they – a) are recognised as such in terms of applicable provincial legislation; b) each have a recognised traditional council within a defined area of jurisdiction; c) each have a senior traditional leader; d) recognise a recognised senior traditional leader who is of higher status than the other senior traditional leaders in terms of custom and customary law, as their king or queen; and e) have a system of traditional leadership at a kingship or queenship level. The traditional communities applying for recognition as a kingship or queenship must have a proven history of existence, with a recognised senior traditional leader of higher status as a king or queen in terms of customary law of succession.

17. The authority to recognise a kingship under the Act after its amendment now vests in the President. Section 2A(3) provides that the President may, on the recommendation of the Minister and after consultation with the relevant Premier, the provincial house of traditional leaders in the relevant province, the national house of traditional leaders and the senior traditional leaders of the traditional communities who fall under the kingship or queenship being applied for, recognise a kingship or queenship. Once the President has recognised a kingship or queenship, that kingship or queenship must establish a kingship or queenship council comprising 60% of traditional leaders and 40% of members elected democratically by an electoral college consisting of senior traditional leaders.[7]

18. The position in relation to the recognition of kingships or queenships brought about by the insertion of section 2A into the Act in 2010 differs markedly from the scheme in place before the amendment. The recognition of a kingship or queenship under the old Act was achieved through the operation of the transitional arrangements enacted in section 28 of the Act. Section 28(1) of the Act provides:

“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.”

The term “traditional leader” is defined broadly and inclusively in section 1(1) of the Act to mean “any person who, in terms of customary law of the traditional community concerned, holds a traditional leadership position, and is recognised in terms of this Act”. As mentioned, the Act recognises four kinds of traditional leadership positions: kingship or queenship; principal traditional leadership; senior traditional leadership; and headmanship.

19. The deeming provision in section 28(1) of the Act had the consequence that traditional leaders appointed under earlier provincial

legislation prior to the commencement of the Act in 2004, retained their recognition as if they had been recognised under section 9 or 11 of the Act.

20. Section 9 deals with the recognition of kings and queens while section 11 governs the recognition of senior traditional leaders and headmen. Section 9 of the Act has assumed importance in the present application. I will set out its provisions later. For present

purposes suffice it to say that it stipulates a procedure for filling a vacant position of king or queen. The process involves the identification by the royal family of a person who qualifies in terms of customary law to assume the position and a subsequent legal engagement with the President, the Premier and the Minister. The President under the un-amended legislation had to recognise a person so identified as a king or queen taking into account – i) the need to establish uniformity in the Republic in respect of the status afforded to a king or queen; and, ii) whether a recognised kingship exists that comprises the area of jurisdiction of a substantial number of senior traditional leaders under the authority of the king or queen; and the king or queen is regarded and recognised in terms of customary law and customs as a traditional leader of higher status.[8]

21. The other notable feature of the deeming provision in section 28(1) of the Act is that the deemed recognition is “subject to a decision of the Commission in terms of section 26”. The provisions of Chapter 6 of the Act, establishing the Commission and defining the scope of its functions have been significantly altered by the amendments. Section 26 of the Act was amended and substituted by section 20 of the Amendment Act in 2010. Under the old Act, the Commission had the power to take decisions in relation to issues and matters falling within its jurisdiction, now it merely has powers of recommendation. The Commission, it may be recalled, recognised and made a decision in relation to kingship of the amaMpondo aseQaukeni under the provisions of the old Act.

22. The objective of the Commission is encapsulated in the title to Chapter 6 which reads: “Dispute resolution and Commission on Traditional Leadership Disputes and Claims.”

23. Section 21 of the old Act, dealing with dispute resolution, prior to its amendment in 2010, read as follows:

“(1)

(a) Whenever a dispute concerning customary law or customs arises within a traditional community or between traditional communities or other customary institutions on a matter arising from the implementation of this Act, members of such a community and traditional leaders within the traditional community or customary institution concerned must seek to resolve the dispute internally and in accordance with customs.

(b) Where a dispute envisaged in paragraph (a) relates to a case that must be investigated by the Commission in terms of section 25(2), the dispute must be referred to the Commission, and paragraph (a) does not apply.

(2)

(a) A dispute referred to in subsection (1)(a) that cannot be resolved as provided for in that subsection must be referred to the relevant provincial house of traditional leaders, which house must seek to resolve the dispute in accordance with its internal rules and procedures.

(b) If a provincial house of traditional leaders is unable to resolve a dispute as provided for in paragraph (a), the dispute must be referred to the Premier of the province concerned, who must resolve the dispute after having consulted –

(i) the parties to the dispute; and

(ii) the provincial house of traditional leaders concerned.”

24. The functions of the Commission are spelt out in section 25 which in its original un-amended form read:

“(1) The Commission operates nationally and has authority to decide on any traditional leadership dispute and claim contemplated in subsection (2) and arising in any province.

(a) The Commission has authority to investigate, either on request or of its own accord –

(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”;

(v) disputes resulting from the determination of traditional authority boundaries and the merging of division of “tribes”; and

(vi) where good grounds exist, any other matters relevant to the matters listed in this paragraph, including the consideration of events that may have arisen before 1 September 1927.

(b) A dispute or claim may be lodged by any person and must be accompanied by information setting out the nature of the dispute or claim and any other relevant information.

(c) The Commission may refuse to consider a dispute or claim on the ground that –

(i) the person who lodged the dispute or claim has not provided the Commission with relevant or sufficient information; or

(ii) the dispute is to be dealt with in terms of section 21(1)(a) in a case where section 21(1)(b) does not apply.

(3)

(a) When considering a dispute or claim, the Commission must consider and apply customary law and the customs of the relevant traditional community as they were when the events occurred that gave rise to the dispute or claim.

(b) The Commission must –

(i) in respect of a kingship, be guided by the criteria set out in section 9(1)(b) and such other customary norms and criteria relevant to the establishment of a kingship; and

(ii) in respect of a senior traditional leadership or headmanship, be guided by the customary norms and criteria relevant to the establishment of a senior traditional leadership or headmanship, as the case may be.

(c) Where the Commission investigates disputes resulting from the determination of traditional authority boundaries and the merging or division of “tribes”, the Commission must, before taking a decision in terms of section 26, consult with the Municipal Demarcation Board established by section 2 of the Local Government: Municipal Demarcation Act, 1998 (Act No. 27 of 1998).

(4) The Commission has authority to investigate all traditional leadership claims and disputes dating from 1 September 1927, subject to subsection (2)(a)(vi).

(5) The Commission must complete its mandate within a period of five years or within such longer period as the President may determine.

(6) Sections 2, 3, 4, 5 and 6 of the Commissions Act, 1947 (Act No. 8 of 1947), apply, with the necessary changes, to the Commission.”

25. The previous legislative scheme under the old Act thus envisaged two levels of dispute resolution. The first concerned disputes about customary law or customs arising within a traditional community or between traditional communities or other customary institutions on matters “arising from the implementation of this Act”, as contemplated in section 21(1)(a). Such disputes were to be referred for resolution internally by the traditional community. The provision required the members of such a community and the relevant traditional leaders to seek to resolve the dispute internally and in accordance with customs. If the dispute could not be resolved at that level, it had to be referred to the relevant provincial house of traditional leaders, and failing success at that level it was to be referred to the Premier of the province who “must resolve” the dispute after a process of consultation.[9]

26. The second level of dispute resolution was that contemplated in section 21(1)(b) of the old Act. It provided that where there was a dispute concerning customary law or customs arising within a traditional community or between traditional communities or other customary institutions on a matter arising from the implementation of the Act which “relates to a case that must be investigated by the Commission in terms of section 25(2)”, such had to be referred directly to the Commission and the requirements of internal dispute resolution contemplated by section 21(1)(a) of the old Act read with section 21(2) would not apply. Consequently, disputes in relation to the issues listed in section 25(2)(a)(i) – (vi) of the old Act had to be referred for investigation and decision by the Commission. Two kinds of disputes envisaged in section 25(2) of the old Act are of particular relevance in this application, namely: i) disputes where there is doubt as to whether a kingship was established in accordance with customary law and customs; and ii) a traditional leadership position where the title or right of the incumbent is contested.[10]

27. Disputes referred to the Commission under the old Act were to be resolved by a decision of the Commission, to be implemented by the President or the relevant provincial government or functionary depending on whether or not the decision of the Commission affected the position of a king or queen. Decisions impacting upon a monarchy, as we have seen, required implementation by the President rather than by provincial government. Section 26 of the old Act read:

“(1) A decision of the Commission is taken with the support of at least two thirds of the members of the Commission.

(2) A decision of the Commission must, within two weeks of the decision being taken, be conveyed to-

(a) the President for immediate implementation in accordance with section 9 or 10 where the position of a king or queen is affected by such a decision; and

(b) the relevant provincial government and any other relevant functionary which must immediately implement the decision of the Commission in accordance with applicable provincial legislation in so far as the implementation of the decision does not relate to the recognition or removal of a king or queen in terms of section 9 or 10.

(3) Any decision taken by the Commission must be conveyed to the President.

28. As I have said, the dispute resolution scheme was significantly amended by the Amendment Act. The amended provisions are not directly relevant since the issues for determination in this application require the interpretation and application of the sections prior to amendment. Under the new dispensation an attempt must be made to resolve all disputes internally, thereafter by the provincial house of traditional leaders and the Premier, before being referred to the Commission. The Commission’s authority is now restricted to investigating and making recommendations on any dispute or claim contemplated in section 25(2) of the Act, which includes making recommendations on a traditional leadership position where the title or right of the incumbent is contested.[11] The recommendations of the Commission must be conveyed to the President where the position of a king or queen is affected by such a recommendation. In terms of section 26(3) of the new Act, the President must within a period of 60 days make a decision on the

recommendation. If the President differs with the recommendation he must provide written reasons for such a decision.[12] The key difference of the new legislative dispensation is that the decision-making authority of the Commission in relation to disputes

where the position of a king or queen is affected has been transferred from the Commission to the President.

29. The legislative scheme in relation to kingships and queenships was completed by the transitional arrangement in section 28(7) of the Act, which reads:

“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 this Act before the Commission commences with any other investigation in terms of that section.”

The provision imposed on the Commission, as its first and primary task, an obligation to investigate paramountcies, and to decide which might be regarded as kingships or queenships. In August 2008 the Commission determined that the kingship of amaMpondo was established and expanded by Faku around 1820 to 1830 and that it embraced the paramountcies of both amaMpondo aseQaukeni (the eastern amaMpondo) and amaMpondo aseNyandeni (the western amaMpondo). I will return to the Commission’s determination later. For present purposes, it is important to note that the determination was made almost 2 years before the Act was amended.

30. The legislative scheme in relation to paramountcies and kingships was added to by section 22(1)(c) of the Amendment Act, which inserted subsections (8)-(11) in section 28 of the new Act. The new subsection (8) is relevant and reads:

“(8)(a) Where, pursuant to an investigation conducted in terms of subsection (7), the Commission has decided that a paramountcy qualifies to be recognised as a kingship or queenship, such a paramountcy is deemed to be recognised as a kingship or queenship in terms of section 3A.[13]

(b) The incumbent paramount chiefs, in respect of the kingships and queenships contemplated in paragraph (a), who were recognised before the commencement of this Act, are deemed to be kings or queens, subject to investigation and recommendation of the Commission in terms of section 25(2).”

31. Section 28(7) of the Act therefore obliged the Commission to investigate the amaMpondo aseQaukeni paramountcy and to decide under section 25(2)(a) of the old Act whether a kingship was established. And a key question in that regard is whether the incumbent paramount chief was at any point in time deemed to be king by reason of the operation of the deeming provision in section 28(1) of the Act, which was operative from the commencement of the Act, or section 28(8)(b), inserted by the Amendment Act, which came into effect on 25 January 2010.

The historical background and the Commission’s decision affecting the kingship of amaMpondo

32. In attending to its obligation to investigate paramountcies established and recognised under apartheid, the Commission was expected to address past distortions. The preamble to the Act records the duty upon the state under the Constitution to set out a national framework, norms and standards that will define the place and role of traditional leadership within the new system of democratic governance, and to restore the integrity and legitimacy of the institution of traditional leadership in line with constitutional

imperatives and customary law. In the colonial and apartheid eras the authorities introduced legislation imposing state control over traditional authorities and institutions. The South Africa Act of 1909 designated the Governor General as the Supreme Chief, a position that gave him power to create and divide tribes and to appoint any person he deemed fit as a chief or a headman, and to depose any traditional leader he deemed unfit. Various pieces of colonial legislation consolidated these powers and vested them in the central government. The manipulation of traditional leadership by the apartheid government denigrated the institution and had de-legitimating consequences.

33. The determination of the Commission on the amaMpondo paramountcies is a scholarly and comprehensive narrative. It is common cause that the kingship of amaMpondo was established under the leadership of Faku, who ruled from 1824 to 1867 and whose great place was at Qaukeni. It was under his leadership that the amaMpondo successfully defended themselves against Shaka in the Mfecane wars between 1824 and 1828. Faku expanded the sphere of influence of amaMpondo traditional leadership through accommodating refugees from the Mfecane wars and consolidated under his authority several neighbouring communities. This led to the emergence of the kingship. The eldest son of Faku’s right-hand house, Ndamase, settled west of the Mzimvubu River to create the amaMpondo aseNyandeni. The eldest son of his great house, Mqikela, remained king at Qaukeni. Pondoland was annexed to the Cape Colony in September 1894 by Proclamation 339 of 25 September 1894. Thereafter there was a consolidation of colonial and apartheid authority. In the early twentieth century the amaMpondo aseQaukeni were led by Marhelane, who was succeeded by the only son of his great house Mandlonke, who died without male issue in 1937. This led to competing claims between two of his brothers, Botha and Nelson Sigcau. Botha was favoured by the central government, with the result that he was recognised as the paramount chief of the Eastern Pondo (amaMpondo aseQaukeni) in terms of the Black Administration Act.[14] On Botha’s death, the leadership dispute re-erupted between his son, Justice Sigcau, and the son of Nelson, Zwelidumile, who was the father of Zanuzuko, the third respondent. Justice Sigcau succeeded his father, Botha, and was appointed and ruled as the paramount chief under the Black Administration Act.

34. After its investigation, the Commission decided that there was only one kingship of amaMpondo. It found that, according to the customs of amaMpondo, the king is born of the great house and does not come from the right hand house. Consequently, since the time of Faku, the kingship of the amaMpondo rested with the Qaukeni house and Ndamase’s establishment of the amaMpondo aseNyandeni never gave rise to a kingship. The traditional leadership position of the amaMpondo aseNyandeni therefore remained a paramountcy.[15]

35. The Commission’s determination in favour of the third respondent as the legitimate king born in the line descending from

the great house was handed down following a lengthy process of public consultations in which Justice Sigcau, his family and representatives

actively participated. The facts showed that Botha Sigcau was a son of the right hand house and thus according to custom his descendants

had no claim to the kingship. The decision was conveyed to the President who gave effect to the decision. As explained earlier, the President’s notice was set aside by the Constitutional Court, but the decision of the Commission recognising the third respondent as King of the amaMpondo aseQaukeni was not. In Nxumalo v President of the RSA and others,[16] a case concerning the disputed kingship of the amaShangana, the Constitutional Court commented about the effect of its decision in Sigcau. It said:

“In Sigcau, where the applicant had sought to have not only the President’s notice set aside but also the Commission’s decision, we did not set aside the Commission’s decision. The order of the High Court dismissing the applicant’s review application was set aside….It seems to me that the result was not only that in Sigcau the Commission’s decision still stood but also that the applicant’s review application in respect of the Commission’s

decision remained undecided and, therefore, pending before the High Court. However, during oral argument in Sigcau, counsel for the applicant informed us that the applicant would be content with an order merely setting aside the President’s

notices. The reasons we gave related to the President’s decision only. Our judgment gave no reasons for setting aside the

High Court’s order in so far as it dismissed the applicant’s application in Sigcau to have the Commission’s decision reviewed and set aside.”[17]

These dicta constitute an authoritative pronouncement that the decision of the Commission in relation to the third respondent’s position as the rightful king of the amaMpondo aseQaukeni remains valid and intact.

The interpretative issue

36. The position of the applicants is that the process of appointing a king of the amaMpondo aseQaukeni must be completed under the provisions of the old Act, as they existed prior to amendment. All that is required to complete the process of recognising and appointing the third respondent, in their view, is for the President to immediately implement the decision, in terms of section 26(2)(a) of the old Act, by publishing a notice in the Gazette and issuing a certificate of recognition in terms of section 9(2) of the Act. The respondents agree that the President must implement the decision under the old Act but argue that more than publishing a notice and the issuing of a certificate of recognition is required. They maintain that the President in carrying out his role in implementing the Commission’s decision is obliged to carry out a full process in terms of section 9 and 10 of the old Act.

37. Section 9 and 10 of the old Act read as follows:

“Recognition of kings and queens

9.(1) Whenever the position of a king or a queen is to be filled, the following process must be followed:

(a) The royal family must, within a reasonable time after the need arises for the position of a king or a queen to be filled, and with due regard to applicable customary law-

(i) identify a person who qualifies in terms of customary law to assume the position of a king or a queen, as the case may be, after taking into account whether any of the grounds referred to in section 10(1)(a),(b) and (d) apply to that person; and

(ii) through the relevant customary structure-

(aa) inform the President, the Premier of the province concerned and the Minister, of the particulars of the person so identified to fill the position of a king or a queen;

(bb) provide the President with the reasons for the identification of that person as a king or a queen; and

(cc) give written confirmation to the President that the Premier of the province concerned and the Minister have been informed accordingly; and

(b) the President must, subject to subsection (3), recognise a person so identified in terms of paragraph (a)(i) as a king or a queen, taking into account-

(i) the need to establish uniformity in the Republic in respect of the status afforded to a king or queen;

(ii) whether a recognised kingship exists-

(aa) that comprises the areas of jurisdiction of a substantial number of senior traditional leaders that fall under the authority of such king or queen;

(bb) in terms of which the king or queen is regarded and recognised in terms of customary law and customs as a traditional leader of higher status than the senior traditional leaders referred to in subparagraph (aa); and

(cc) where the king or queen has a customary structure to represent the traditional councils and senior traditional leaders that fall under the authority of the king or queen; and

(iii) the functions that will be performed by the king or queen.

(2) The recognition of a person as a king or a queen in terms of subsection (1)(b) must be done by way of-

(a) a notice in the Gazette recognising the person identified as king or queen; and

(b) the issuing of a certificate of recognition to the identified person.

(3) Where there is evidence or an allegation that the identification of a person referred to in subsection (1) was not done in accordance with customary law, customs or processes, the President-

(a) may refer the matter to the National House of Traditional Leaders for its recommendation; or

(b) may refuse to issue a certificate of recognition; and

(c) must refer the matter back to the royal family for reconsideration and resolution where the certificate of recognition has been refused.

(4) Where the matter which has been referred back to the royal family for reconsideration and resolution in terms of subsection (3) has been reconsidered and resolved, the President must recognise the person identified by the royal family if the President is satisfied that the reconsideration and resolution by the royal family has been done in accordance with customary law.

(5)(a) The President may, by notice in the Gazette, make regulations concerning-

(i) the traditional or ceremonial role of a king or queen;

(ii) the responsibilities of a king or queen in respect of nation building; and

(iii) other functions or roles of a king or queen.

(b) Regulations made in terms of paragraph (a) must be tabled in Parliament after their publication in the Gazette.

Removal of kings or queens

10.(1) A king or queen may be removed from office on the grounds of-

(a) conviction of an offence with a sentence of imprisonment for more than 12 months without an option of a fine;

(b) physical incapacity or mental infirmity which, based on acceptable medical evidence, makes it impossible for the king or queen to function as such;

(c) wrongful appointment or recognition; or

(d) a transgression of a customary rule or principal that warrants removal.

(2) Whenever any of the grounds referred to in subsection (1)(a),(b) and (d) come to the attention of the royal family and the royal family decides to remove a king or queen, the royal family must, within a reasonable time and through the relevant customary structure-

(a) inform the President, the Premier of the province concerned and the Minister, of the particulars of the king or queen to be removed from office;

(b) furnish reasons for such removal; and

(c) give written confirmation to the President that the Premier of the province concerned and the Minister have been informed accordingly.

(3) Where it has been decided to remove a king or queen in terms of subsection (2), the President must-

(a) withdraw the certificate of recognition with effect from the date of removal;

(b) publish a notice with particulars of the removed king or queen in the Gazette; and

(c) inform the royal family concerned, and the removed king or queen of such removal.

(4) Where a king or queen is removed from office, a successor in line with customs may assume the position, role and responsibilities, subject to section 9.”

38. An order compelling the President to follow the procedure in section 9 would result in the royal family having the right to identify a person to assume the position, reconsideration by the President, a possible reference to the National House of Traditional Leaders and further reconsideration by the royal family. The respondents allege furthermore that the incumbent paramount chief, Justice Sigcau, needed to have been removed under section 10, before the third respondent could assume the position of king.

39. The matter resolves ultimately upon the correct interpretation of section 26(2)(a) of the old Act; particularly in what was meant or intended by the requirement that a “decision of the Commission must, within two weeks of the decision being taken, be conveyed to the President for immediate implementation in accordance with section 9 or 10 where the position of a king or queen is affected by such a decision”. The applicants referred to this issue as “the central interpretative dispute” between them and the respondents. They argued that an interpretation obliging the President to engage in another consultative process, in addition to that which had been undertaken and completed by the Commission, would lead to insensible results and would strip the process before the Commission of any utility. They accordingly submitted that the cross-reference to sections 9 and 10 in section 26(2)(a) of the old Act merely meant that the President’s implementation function had to be effected by publishing a notice in the Gazette and issuing or withdrawing a certificate of recognition as provided in sections 9(2) and 10(3) of the Act. In other words the phrase “in accordance with section 9 and 10” in section 26(2)(a) of the old Act should be restrictively interpreted to read “in accordance with section 9(2) or 10(3)”.

Declaratory relief

40. The respondents challenge the right of the applicants to seek declaratory relief contending that the pre-requisites for the grant of such relief have not been established.

41. The applicants seek declaratory relief as to the correct approach in order to determine the action to be taken by the President. As they see it, the proper interpretation of the old section 26(2)(a) is important to the applicants as well as to the competitors for the kingship or queenship. If the interpretation favoured by the applicants is adopted, the President is tasked practically with little more than issuing the third respondent with a certificate of recognition. If the alternative is favoured, the President will have to give consideration to the views of the royal family and to engage fully with it. The applicants thus contend that it is appropriate for the court to exercise its discretion in favour of granting declaratory relief. They seek the relief either in terms of section 8(1)(d) of the Promotion of Administrative Justice Act[18] (“PAJA”) or in terms of section 21(1)(c) of the Superior Courts Act.[19]

42. Section 8(1)(d) of PAJA reads:

“(1) The court or tribunal, in proceedings for judicial review in terms of section 6(1), may grant any order that is just and equitable, including orders –

(a)….

(b)…..

(c)…..

(d) declaring the rights of the parties in respect of any matter to which the administrative action relates.”

The applicants’ reliance on this provision, as the respondents correctly argued, is misplaced. This provision only applies in proceedings for the judicial review of administrative action. The applicants do not seek to review any administrative action on the grounds of unreasonableness, irrationality, illegality or procedural fairness. Hence, PAJA and section 8 thereof have no application.

43. The applicable provision is section 21(1)(c) of the Superior Courts Act, which reads:

“(1) A Division has jurisdiction over all persons residing or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction and all other matters of which it may according to law take cognisance, and has the power –

(a)……

(b)……

(c) in its discretion, and at the instance of any interested party, to inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination.”

44. The respondents submitted in limine that the applicants are not interested parties within the meaning of section 21(1)(c) of the Superior Courts Act. They maintain that the applicants must have a direct interest relating to an existing, future or contingent right, and that such interest must be a real interest and not merely an abstract or intellectual interest. They contend that the applicants have no real interest, that the question asked is hypothetical or abstract and consequently that the applicants are seeking a legal opinion on an abstract question.

45. The court has a discretion whether or not to grant relief in terms of section 21(1)(c) of the Superior Courts Act. That discretion must be exercised with due regard to the circumstances and there can be no proper exercise of the discretion if the essential elements of a declarator are not fulfilled. The exercise involves a two stage inquiry: first, the court must be satisfied that the applicant has an interest in an existing, future or contingent right or obligation; and, secondly, if the court is satisfied that such an interest exists, it must be considered whether or not the order should be granted. In the exercise of its discretion, the court may decline to deal with the matter where there is no actual dispute, or where the question raised is hypothetical, abstract or academic.[20]

46. In my view, the interest of the President in the relief sought is beyond question. Section 26(2)(a) of the old Act requires the Commission to convey its decision to the President for his further action. The President has an obligation to act by immediately

implementing the decision in accordance with section 9 or 10. He seeks a determination of his existing and future obligations in that regard. A declaratory order determining his obligations will be of tangible and justifiable advantage to him in that it will direct him to the legal pre-requisites to be fulfilled in the exercise of his statutory duty. Properly directed, the President can implement the decision lawfully, and avoid unnecessary litigation in that regard.

47. The interests of the Minister and the Commission are less obvious. However, in dealing with standing or interest in a public law context, these questions should be approached pragmatically. Each case depends on its own facts and the court should eschew an overly technical and formalistic approach. The Minister is the functionary responsible for the administration of the Act, and the Commission has a special function to deal with disputes arising in its implementation. The matter in question involves an exercise of power by the President under the Act. The Minister has a manifest interest in the President acting lawfully and properly. The Commission has a residuary interest in the ultimate implementation of its decision. Their joinder in the proceedings, in which they are represented by the same legal team acting for the President, has not imposed any additional burden upon the respondents. They accordingly have an interest comparable to that of the President in a determination of the statutory duties created by the Act in the implementation of which they play some part.

48. The respondents further contend that there is no actual dispute between the parties and that I should accordingly decline to exercise the discretion to grant declaratory relief for that reason. In ex Parte Ginsberg[21] Greenberg J said:

“The Legislature must have been aware of the fact that there is no dearth of advocates and attorneys competent to advise upon legal problems and there is no reason to think that it intended to set up the Courts as consultative or advisory bodies, in competition with members of these respected professions.”

The respondents argued that the applicants are merely seeking legal advice from the courts without there being a live dispute between the parties. The Constitutional Court has directed the President to implement the Commission’s decision under the provisions of the Act prior to its amendment and there is no basis for him to seek further legal advice from the courts.

49. The respondents’ submission is without merit, in my opinion. There is quite evidently a live and actual dispute between the parties, forming a lis worthy of determination. After the Constitutional Court handed down judgment, the attorneys of the parties engaged in correspondence with regard to the implications of the judgment. In a letter dated 29 April 2014, addressed on behalf of the President to the attorneys of the respondents, the President’s attorney stated:

“The Constitutional Court did not set aside either the Commission’s underlying decision to recognise the kingship, or its decision to recognise Zanuzuko as the rightful king. In the circumstances those decisions stand unaffected, and that they must be treated as valid (sic). Stated differently, it is not open to my client to go behind, or revisit the factual and legal determinations made by the Commission.

The only outstanding matter is thus that my client must take action anew to finalise the claims to the kingship position. As the dispute between the two claimants arose under the Old Act, the Constitutional Court’s finding means that this ‘fresh’ action must be taken in terms of the Old Act as well.

In practical terms, this would appear to mean that my client is called on, in terms of section 26(2)(a) of the Old Act, to “implement” the decision of the Commission.”

It is clear from the preceding paragraphs in the letter that the President took the view that only publication and the issuing of the certificate was required. His attorney later concluded:

“Before my client makes any decisions, or take any further action, in this regard, he wishes to provide your clients with a chance to make further submissions to him on the following aspects:

First, is it accepted that my client is called on to act in accordance with section 26(2)(a) of the Old Act, to decide the competing claims by the late Justice Mpondombini Sigcau (or his successor) and Zanuzuko? Alternatively, what provisions do you and your clients assert should shape my clients decision and/or action?

Secondly, what process should precede any action by my client before taking any action, whether under section 26(2)(a) of the Old Act or any other provision?”

50. In their response, dated 14 May 2014, the respondents’ attorneys indicated that they did not accept the applicants’

interpretation that the implementation only involved publication and issuing the certificate but in fact required the President to consult with the royal family and implement the decision according to sections 9 and 10. Moreover, in paragraphs 15-19 of the answering affidavit, the respondents unequivocally acknowledged that there is a dispute between the parties regarding the interpretation of section 26(2)(a) of the old Act and the nature and extent of the duties it imposes upon the President. Any declarator in that regard will thus have a binding effect on both the President and the respondents. The issue will be decided and will meet the eadem quaestio precondition in a plea of res judicata.[22] It accordingly cannot be said that there is no live dispute, or that the question raised is hypothetical, abstract or academic. It is an actual dispute about the requirements of legality placed upon the President by section 26(2)(a) of the old Act.

51. In so far as it was argued on behalf of the respondents that the Constitutional Court has resolved the question; that is simply not correct. All the Constitutional Court decided was that the President had to implement the decision of the Commission by acting in terms of section 26(2)(a) of the old Act. It gave no direction of any kind regarding the nature and extent of the “implementation”

required.

52. For reasons that will become apparent in the ensuing analysis of the two competing interpretations of section 26(2)(a) of the old Act, it cannot be said, as the respondents would have it, that the legal position is clearly defined in the provision. Structural and purposive arguments reveal the provision to be inherently ambiguous. The declaratory relief sought will bring certainty in a live dispute with the advantage of avoiding or limiting the possibility of review on legality or jurisdictional grounds.

53. In the premises, I am prepared to exercise my discretion in favour of entertaining the application for the grant of appropriate declaratory relief. However, the relief sought in prayer 1, declaring that the first respondent has no right to claim the position as queen of the amaMpondo aseQaukeni, goes beyond what is justifiable. The Constitutional Court did not decide the review of the decision brought by Justice Sigcau in the Sigcau case, and described that application as “pending” when it commented upon it in Nxumalo. A declarator that the first respondent has no right to claim the position as queen would pre-empt the review of the Commission’s

decision, without any consideration of the grounds of the review, which have not been pleaded or identified in the application before me. Whenever a court has to determine whether it should exercise its discretion in favour of a declaratory order, considerations of public policy and the interests of justice may come into play.[23] It will not be in the interests of justice to hand down a declaratory order that in effect may finally determine a question that is pending in another application and which must be determined on grounds not pleaded or evidence not adduced in the present application. I am therefore prepared only to exercise my discretion to grant declaratory relief in relation to the question regarding the nature

and extent of the President’s duties to implement the decision of the Commission.

Authority

54. The deponent to the founding affidavit, Prof Muzamani Nwaila, the Director-General of the Department of Co-operative Governance and Traditional Affairs, averred that he was authorised to act on behalf of the President and the Minister. The respondents disputed his authority to represent the President, the Minister or the Commission. The President, the Minister and the Chairperson of the Commission confirmed in reply that they had authorised the Director-General to represent them in the proceedings. There is accordingly no basis to the challenge to the Director-General’s authority.

55. The respondents raised another point aligned to the question of authority. They maintained that even if the President authorised the Director-General, the authorisation is not in accordance with section 101(1) and (2) of the Constitution, which provides:

“Executive decisions

(1) A decision by the President must be in writing if it-

(a) is taken in terms of legislation; or

(b) has legal consequences.

(2) A written decision by the President must be countersigned by another Cabinet member if that decision concerns a function assigned to that other Cabinet member.”

56. It is common cause that the initial decision to authorise the Director-General to initiate the application was not in writing and not countersigned by a Cabinet member. The respondents did not specify in their submissions what consequences should attend any failure by the President to comply with section 101. It is not axiomatic that any such decision should be invalid and set aside.

However, there is no need now to decide the implications of any such lapse. Firstly, section 101 is concerned with executive and not administrative or ministerial decisions. Executive action and decisions in our law are generally associated with the formulation of policy in the broad sense. In the context of the President’s functions they include assenting to a Bill or remitting it for reconsideration; the power to make certain appointments; the summoning of Parliament and the like. A decision to authorise

litigation does not fall into this category. In any event, the function in question here was not assigned to the Minister and thus

the decision did not require counter signature by the Minister. If the only requirement is therefore the recordal of the decision in writing, subsequent ratification and recordal in writing in the President’s replying affidavit might well be sufficient. But, as I have said, there is no need to decide the point, because the decision in question was not an executive decision. The preconditions of section 101 of the Constitution find no application in the present matter.

The interpretation of section 26(2)(a) of the old Act

57. Section 26(2)(a) of the old Act, it will be recalled, requires a decision of the Commission to be conveyed to the President “for immediate implementation in accordance with section 9 or 10 where the position of a king or queen is affected by such decision”. The disagreement between the parties, as I have explained, relates to whether all the provisions of sections 9 and 10 have application or only section 9(2) or section 10(3). The respondents say that section 26(2)(a) admits of no ambiguity, must be given its ordinary and literal meaning and consequently means that all of the provisions of section 9 and section 10 apply. The applicants urge for a purposive, contextual and structural interpretation restricting the meaning of the cross-reference to sections 9 and 10 to those subsections that might sensibly apply.

58. In the final analysis, the choice of meaning of a statutory provision, judicially arrived at, depends on the theory of interpretation adopted. Mr Mtshaulana SC, on behalf of the respondents, relied on the line of thinking followed by Kentridge AJ in S v Zuma,[24] where the learned acting judge of the Constitutional Court betrayed a preference for literal intentionalism when he said:

“While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument. I am well aware of the fallacy of supposing that general language must have a single ‘objective’ meaning. Nor is it easy to avoid the influence of one’s personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean … even a constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to ‘values’ the result is not interpretation but divination.”

59. This approach is predicated upon the notion that the true meaning of a provision is essentially discovered textually, to be sought in the language used by the legislature. Meaning is equated with philological meaning, at least primarily. A variant of this approach is that the true intention of the legislature (on the assumption that there is such a thing) is to be found in the words in which it has expressed itself. What the legislature intended is ascertained from the ordinary and grammatical meaning of the words used.

60. Notwithstanding the fact that the literalist approach has reigned supreme in legal practice, its limitations were circumvented early on with the formulation of the mischief rule in Heydon’s case in England during the 17th century. The rule was embraced in our law in Hleka v Johannesburg City Council.[25] The rule holds that “to arrive at the real meaning”, we have to consider (1) what was the law before the measure was passed; (2) what was the mischief or defect for which the law had not provided; (3) what remedy the legislator appointed; and (4) the reason of the remedy. Purposive interpretation, drawing on contextual understanding, “is always suppressive of the mischief in that it is conducive to the remedy aimed at its elimination.”[26] This method comprehends that the interpretation of a statutory provision involves and requires recognition of its purposive and

contextual framework right from the outset, and not only when the language yields a philological ambiguity demanding contextual

resolution. It famously found favour in the minority judgment of Schreiner JA in Jaga v Donges NO[27] where he said:

“Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in light of their context. But it may be useful to stress two points in relation to the application of this principle. The first is that “the context”, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background. The second point is that the approach to the work of interpreting may be along either of two lines. Either one may split the inquiry into two parts and concentrate, in the first instance, on finding out whether the language to be interpreted has or appears to have one clear ordinary meaning, confining a consideration of the context only to cases where the language appears to admit of more

than one meaning; or one may from the beginning consider the context and the language to be interpreted together.”

61. Despite this eloquent endorsement of purposive contextual interpretation, all who practise law in South Africa know that judges

have struggled to abandon the precepts of literalism, discernible in the judgment of Kentridge AJ in Zuma. The starting point of literalism, inevitably, is an expressed endeavour to ascertain the intention of the legislature through a linguistic analysis of the text and the language. There is an innate and logical reason for that. As Schreiner JA understood, the difference in approach is basically a difference of emphasis. The interpreter who concentrates primarily on language usually cannot wholly exclude the context; and “the interpreter who from the outset tries to look at the setting as well as the language to be interpreted cannot avoid the often decisive first impression created by what he understands to be the ordinary meaning of the language”.[28] The clearer the language the more it dominates over the context. The less clear the language, the more important the context.

62. Lately, the method preferred by Schreiner JA has gained the ascendancy it deserves. In Natal Joint Municipal Pension Fund v Endumeni Municipality,[29] the Supreme Court of Appeal gave its approval to the judgment of Schreiner JA as follows:

“[18] … The present state of the law can be expressed as follows: Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or un-businesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made. The ‘inevitable point of departure is the language of the provision itself’, read in context and having regard to the purpose of the provision and

the background to the preparation and production of the document.

[19] All this is consistent with the ‘emerging trend in statutory construction’. It clearly adopts as the proper

approach to the interpretation of documents the second of the two possible approaches mentioned by Schreiner JA in Jaga v Dönges NO … namely that from the outset one considers the context and the language together, with neither predominating over the other.

This is the approach that courts in South Africa should now follow, without the need to cite authorities from an earlier era that are not necessarily consistent and frequently reflect an approach to interpretation that is no longer appropriate….”

63. The interpreter positing any legal proposition or meaning as true through this interpretative methodology invariably relies upon one or more of the following six modalities of legal argument: i) textual (looking at the meaning of the words as understood generally and ordinarily); ii) historical (relying on the intentions of the law maker); iii) structural (inferring rules from the relationships that the statute mandates among the structures it sets up); iv) doctrinal (applying rules generated by precedent); v) ethical (deriving rules from those moral commitments of our constitutional ethos); and vi) prudential (seeking to balance the costs and benefits of a particular principle and its application). In Jaga v Donges NO Schreiner JA seemingly understood that there is no meta-modality of interpretation in instances where application of the different

modalities yield different and contradictory meanings. Sometimes reliance on the meaning signified by a preponderance of the modalities is the surest way to maintain the requisite standard of objectivity. Where the modalities of argument are evenly poised, presenting two equally plausible meanings, there may be room for judicial conscience. Then, more than ever, as Kentridge AJ well understood, a judge must guard against his or her personal intellectual and moral preconceptions, to the point even of interpreting against his or her own preferences.[30]

64. I have emphasised, laboured even, the underpinnings of the modern approach to interpretation of statutes in order to offer a

comprehensible validation of the line of argument pursued by the applicants in their interpretation of section 26(2)(a) of the old Act. The argument that the reference to sections 9 and 10 of the Act in section 26(2)(a) should be restrictively construed to refer only to publication and the issuing of a certificate is a bid to amend the wording of the provision in order to give just and sensible effect to it. Concretization in this instance, as counsel for the applicants, Mr Arendse SC, submitted, compels departure from the plain language in order to give full effect to the manifest object of the provision, which would otherwise be rendered nugatory and anomalous. A statute is presumed to be enacted in the public interest, and is aimed at sensible results and the avoidance of anomalies that undermine its purpose.

65. The point of departure in relation to a proper interpretation of section 26(2) of the old Act is found in a contextual understanding

of the structural role of the Commission prior to the amendment of the Act. The Commission was originally created with a limited life span of 5 years, which was extended until 31 January 2010. It was given the power to make decisions, rather than mere recommendations,

to deal with the institutional distortions in traditional leadership that had occurred under apartheid. This emerges from section 25(2) of the Act which granted the Commission the authority to investigate not only on request, but also of its own accord, and section 28(7) of the Act which obliged it to investigate the position of paramountcies “before the Commission commences with any other investigation”. Thus, the Commission was mandated to prioritise investigations into whether certain kingships existed and disputes regarding the identity of the king; and then had to render a decision in terms of section 26(2) of the old Act, rather than merely to make a recommendation, as is now the case under the new Act. The shift in emphasis is explicable on account of the pertinent inquiries into these elementary questions now for the most part having been completed and decided by searching investigations of a quasi-judicial nature.

66. Section 25(3)(b) of the old Act provided that in disputes in respect of a kingship the Commission had to be guided by the criteria set out in section 9(1)(b) of the Act and such other customary norms and criteria relevant to the establishment of a kingship. These included the need to establish uniformity in respect of status afforded to a king or queen in the Republic; whether a recognised kingship existed comprising the areas of jurisdiction of a substantial number of senior traditional leaders who recognised the king or queen as a traditional leader of higher status; whether the king or queen had a traditional structure involving the traditional leaders who fall under the king’s authority; and the functions performed by the king or queen. A decision by the Commission had to be taken by a two-thirds majority and be conveyed to the President “for immediate implementation in accordance with section 9 and 10”. [31]

67. If the President were obliged to follow section 9 to the letter, as the respondents maintain, it would involve the following. Firstly, the royal family would be required to identify the person who qualifies in terms of customary law to be the king or queen [32] and to convey its decision to the President;[33] secondly, the President would then have to take a decision recognising the person identified (in terms of section 9(1)(b) of the

old Act), taking into account the various criteria and considerations mentioned in section 9(1)(b), which are the very same considerations

which had to be applied by the Commission under section 25(3)(b) of the old Act when it took its decision; and thirdly the President

would have to recognise the person formally by notice in the Gazette, and by issuing a certificate of recognition.[34]

68. The applicants make the structural argument that requiring the first two steps would be superfluous. If such a process were to be followed, the decision of the Commission would play no role in the process under section 9. The President would be required to make his decision to recognise a king or queen based on his own assessment of the same factors considered by the Commission. Moreover, the structure of section 9 is such that save in limited circumstances the President would be bound to recognise the person identified by the royal family.[35] The only circumstances in which the President could potentially refuse to appoint the person identified by the royal family would be where there was evidence or an allegation that customary law, customs or process were not followed.[36] But even then the President’s powers were limited to referring the matter back to the royal family[37] and, after reconsideration by the royal family, the President would be obliged to appoint the identified person.[38]

69. The applicants submit that section 9 is intended to deal with the filling of a position of a king or a queen whenever it is left vacant. It was never the intention for it to apply in its entirety to an investigation of a paramountcy by the Commission in terms of section 28(7) read with section 25(2) of the old Act, whereby it had authority to investigate and decide on the existence of a kingship and the entitlement to occupy that position. The Commission having applied the criteria in section 9(1)(b) and rendered a decision, there is no requirement for the President in this kind of investigation to rely on the royal family. The purpose of section 28(7) of the Act and the scheme to inquire into the existing paramountcies was to redress past distortions. Section 9 of the Act, by contrast, is aimed at the appointment of successors to existing kingships left vacant for other reasons arising in the ordinary course.

70. The applicants’ argument is supported by a number of structural and prudential considerations. Before the amendment of the Act, the legislative scheme in relation to the recognition of paramountcies as kingships clearly mandated the Commission to act as the decision-maker, with the President’s role being confined to “immediate implementation”. As the designated specialist, quasi-judicial body, the Commission could expect a measure of deference for the limited period in which its investigative and decision-making functions were directed at redressing the pre-existing institutional distortions. To expect the President to

take his own decision on the same subject decided by the Commission would introduce a measure of duplication, a cumbersome process and insensible inefficiency. It would make no sense for the Commission to be empowered to investigate and make a decision on a claim or dispute, only for its findings to be rendered redundant by a fresh process undertaken by the President, which gave precedence to the choice of the royal family above the decision of the Commission. The investigation conducted by the Commission would be rendered futile and its decision valueless. The outcome would be anomalous in that after gathering evidence, hearing all interested parties, and making an impartial decision based on custom, the Commission’s decision would simply fall away in the face of a unilateral nomination by the royal family in terms of section 9(1)(a) of the Act. This could never have been the intention.

71. Moreover, the interpretation favoured by the respondents would involve a duplication of functions and decision-making in relation to the criteria and considerations applicable in terms of section 9(1)(b) of the Act. The same issues would be decided twice by

different functionaries. And the President would be faced with possibly competing decisions in relation to the ultimate decision:

one from the Commission and the other from the royal family. If the President adopted the decision of the Commission he would have to refuse the nomination presented by the royal family,[39] would be obliged to remit the matter to the royal family for reconsideration and would have to continue doing so until the royal

family agreed with the choice of the Commission. On the other hand, if he accepted the nomination of the royal family, then the

Commission’s decision would be rendered pointless.

72. A finding that so cumbersome and needless a process was not intended by the legislature is supported by the textual argument that section 26(2)(a) of the Act in its un-amended form required “immediate” implementation. The wording implies that once the decision of the Commission was conveyed to the President within two weeks of it having been made, it had to be implemented straightaway. The legislature did not contemplate a second lengthy process of

engagement involving the President and the royal family, where the latter’s approval of the Commission’s decision would in effect be sought. In addition, if a process under section 9 is followed, then the President cannot be said to be implementing a decision of the Commission. He would instead be making his own decision. Implementation does not necessarily involve an act of

completion or perfection. In this instance it means the carrying out of, or giving formal effect to a concluded administrative action of a statutory body. It is the execution of a complete decision.[40]

73. To reiterate: insistence on the President conducting a full process under section 9 of the Act would undermine the legislative purpose in establishing the structural arrangements to deal with traditional leadership claims and disputes in the manner reflected in the text of the statute read as a whole. From a prudential or cost-benefit analysis, there is no sense or value in pursuing a duplicated process. In investigations done under section 25(2) of the Act prior to its amendment, the language and context of the statute confirmed that the decision of the Commission was intended to prevail over the preference of the royal family. The Commission was called upon to deal with an extraordinary situation aimed at redress of past distortions, whereas section 9 of the Act creates a mechanism for the ordinary succession to vacant kingships.

74. In the premises, I agree with the applicants that section 26(2)(a) of the old Act cannot be construed to require the President to engage in the full process envisaged under section 9 of the Act. The literal interpretation urged for by the respondents would not have sensible or business-like results. A more restricted meaning is justified by the context. Accordingly, the applicants are entitled to the declaratory relief sought in paragraphs 2 and 3 of the notice of motion.

Section 10 of the Act and the deeming provision

75. Section 26(2)(a) of the Act, as mentioned more than once, also makes reference to section 10 of the Act. That section provides that a king or queen may be removed from office only on the grounds mentioned in section 10(1) which are: (a) conviction of an offence with a sentence of imprisonment for more than 12 months; (b) physical incapacity or mental infirmity making it impossible for the king or queen to function; (c) wrongful appointment or recognition; or (d) a transgression of a customary rule or principal that warrants removal. The authority to remove a king on one of the acknowledged grounds vests in the royal family.[41]

76. The respondents maintain that Justice Sigcau became king by virtue of the applicable deeming provisions and could only be removed from his position in accordance with section 10 of the Act and not indirectly by the fiat of the Commission’s decision conferring the title upon the third respondent.

77. The applicants countered that section 10 of the Act, like section 9, presupposes that there is an existing king or queen. The kingship of the amaMpondo was recognised in terms of the Act in 2008, but the identity of the rightful claimant was left open pending a further determination by the Commission. Justice Sigcau was the incumbent paramount chief appointed under apartheid laws. The applicants take the view that he was never recognised or deemed to be the rightful claimant to the title and position of king.

78. The third respondent was recognised to be king by way of the decision of the Commission taken on 21 January 2010, four days before the amendments to the Act came into effect on 25 January 2010. At that time the only applicable deeming provision was that in section 28(1) of the Act which provided that any traditional leader appointed in terms of provincial legislation before the commencement of the Act would deemed to be recognised as a king or a senior traditional leader in terms of either section 9 or 11 whichever applied. This deeming provision may not have affected the position of Justice Sigcau in any way because he was not appointed in terms of provincial legislation. But even had he been, he was not appointed under earlier legislation as a king. He was a paramount chief and thus at best a senior traditional leader. Hence, his removal would have been regulated by section 11 of the Act, which is then a matter which does not impact upon the President’s duty to implement the Commission’s decision in accordance with section 9 or 10.

79. The situation was complicated by the enactment, four days after the Commission’s decision, of section 28(8) of the Act. That provision provides that where pursuant to an investigation by the Commission under section 28(7) of the Act, the Commission decided that a paramountcy qualifies to be recognised as a kingship, as happened in this case in April 2008, such paramountcy would be deemed to be a kingship; and that the incumbent paramount chief would be deemed to be king. Relying on this provision, the respondents argued that Justice Sigcau became a king four days after the Commission decided that the third respondent should be king. They claim that the decision of the Commission to appoint the third respondent was ineffective until the President had implemented it in terms of section 26(2)(a) of the Act, something which he has not yet effectively done. In the result, the deeming provision operated to deem Justice Sigcau as the incumbent paramount chief to be king from 25 January 2010.

80. The respondents’ argument cannot be sustained for the reason that the deeming provision in section 28(8)(b) of the Act is expressly made subject to any investigation and recommendation of the Commission in terms of section 25(2) of the Act. The expression

“subject to” means that a qualification or limitation is introduced implying that the deeming provision applies “except

as curtailed by” any investigation, recommendation or decision.[42] The object of the qualification in section 28(8)(b) of the Act is for the deeming provision not to operate where there is a process underway to investigate a traditional leadership position where the title or right of the incumbent is contested. The decision on the kingship pursuant to the investigation had been taken before the deeming provision was enacted, and in so far as it might be suggested that the decision was inchoate until implementation, the question was still subject to investigation and the deeming provision did not apply. There is consequently no duty upon the President to subject his duty to implement the Commission’s decision to the process envisaged in section 10 of the Act. The decision of the Commission does not require the removal of any existing or deemed king of the amaMpondo.

Costs

81. The applicants initially indicated that given the significance of the matter they would not seek costs save to the extent that any opposition became unhelpful, frivolous or vexatious. The respondents made allegations that that the application was motivated by improper, ulterior motives and that the President was biased in favour of the third respondent. The applicants accordingly gave notice that they would seek costs if the respondents persisted at the hearing with such allegations. Counsel for the respondents informed the court that the respondents did not persist with such allegations, and accepted the bona fides of the applicants. Accordingly, the applicants do not seek costs.

The order

82. The following orders are made:

i) It is declared that the second applicant is required and empowered only to implement the decision of the third applicant of 21 January 2010 in accordance with the requirements in paragraph ii) of this order.

ii) It is declared that section 26(2)(a), read with sections 9 and 10, of the Traditional Leadership and Governance Framework Act 41 of 2003, prior to its amendment by Act 23 of 2009, does not permit, require or empower the second applicant to follow a process of consultation with the royal family of the amaMpondo aseQaukeni before implementing the decision of the third applicant. And it is declared further that the aforementioned provisions require the second applicant only to publicise the decision of the Commission and to issue a certificate of recognition to the third respondent as contemplated in section 9(2) of the Act.

iii) There is no order as to costs.

JR MURPHY

JUDGE OF THE HIGH COURT

Date Heard: 2 November 2015

Counsel for Applicant: Adv N Arendse SC, Adv D Borgström

Instructed by: Bhadrish Daya Attorneys

Counsel for Respondent: Adv PM Mtshaulana SC, Adv PG Seleka

Instructed by: Webber Wentzel Attorneys

Date of Judgment: 20 November 2015

[1] 2013 (9) BCLR 1091 (CC)

[2] Unitrans Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National Transport Commission and Others; Transnet Ltd (Autonet Division) v Chairman Transport Commission, and Others 1999 (4) SA 1 (SCA), para 17-19.

[3] Section 2 of the Act

[4] Section 3 of the Act

[5] Section 4 of the Act

[6] Section 8 of the Act

[7] Section 3A of the Act

[8] Section 9(1)(b) of the Act prior to amendment. This provision was amended by section 11(b) of the Amendment Act to require the

President to take into account whether a kingship or queenship has been recognised in terms of section 2A.

[9] Section 21(2) of the Act

[10] Section 25(2)(a)(i) and (ii) of the Act

[11] Section 25(2)(a)(iii) of the new Act.

[12] Section 26(4) of the new Act.

[13] The reference in subsection (8)(a) to section 3A is incorrect. It should refer to section 2A. Section 3A governs the establishment and recognition of kingship or queenship councils. Section 2A deals with the recognition of kingships or queenships.

[14] Act 18 of 1927

[15] The Commission’s finding in relation to the amaMpondo aseNyandeni was later challenged in the courts. The outcome does not concern us – see Matiwane v President of the Republic [2014] 2 All SA 419 (ECM). For present purposes it is sufficient to acknowledge that the paramountcy of the Eastern Pondo was determined by the Commission in April 2008 to constitute the kingship of the amaMpondo aseQaukeni.

[16] 2014 (12) BCLR 1457 (CC)

[17] ibid at paras 17-18

[18] Act 3 of 2000

[19] Act 10 of 2013

[20] Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA) at 213E-G; Ex Parte Nell 1963 (1) SA 754 (A) at 760B; and Erasmus Superior Court Practice (2ed) A2-127-128.

[21] 1936 TPD 115 at 157

[22] Family Benefit Friendly Society v Commissioner for Inland Revenue 1995 (4) SA 120 (T) at 125H-J

[23] Family Benefit Friendly Society v Commissioner for Inland Revenue 1995 (4) SA 120 (T) at 126C

[24] [1995] ZACC 1; 1995 (2) SA 642 (CC), paras 17-18

[25] 1949 (1) SA 842 (A) at 852

[26] LM du Plessis The Interpretation of Statues 33

[27] 1950 (4) SA 653 (A) at 662-663

[28] Ibid at 664D-E

[29] 2012 (4) SA 593

[30] See generally P Bobbit Constitutional Interpretation (Blackwell 1991).

[31] Section 26(2)(a) of the old Act required the President to implement a decision of the Commission in accordance with both section 9 and section 10 of the Act. This latter provision deals with the removal of kings. I will discuss the interpretation and application of this provision when I consider the question of whether Justice Sigcau was ever a king, who the Commission sought to remove by virtue of its decision favouring the third respondent. For now I confine the discussion and analysis to the applicants’ structural argument that the reference in section 26(2)(a) to section 9 should be restrictively interpreted to require implementation only in accordance with section 9(2).

[32] Section 9(1)(a)(i) of the old Act

[33] Section 9(1)(a)(ii) of the old Act

[34] Section 9(2) of the Act

[35] Section 9(1)(b) of the Act

[36] Section 9(3) of the Act

[37] Section 9(3)(c) of the Act

[38] Section 9(4) of the Act

[39] Section 9(3) of the Act

[40] PG Bison Ltd v The Master 2000 (1) SA859 (SCA) at para 10-12

[41] Section 10(2) of the Act

[42] Premier, Eastern Cape and Another v Sekeleni 2003 (4) SA 369 (SCA) at 375H