South African National Roads Agency Limited v Zunkulu and Others (18553/12) [2015] ZAGPPHC 770 (13 November 2015)

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION. PRETORIA)

CASE NO: 18553/12

IN THE MATTER BETWEEN

SOUTH AFRICAN NATIONAL ROADS AGENCY LIMITED

Applicant

and

REINFORD SINGEGUGU ZUKULU First

Respondent

THE AMADIBA TRIBAL AUTHORITY Second

Respondent

THE KHIMBILI COMMUNAL PROPERTY ASSOCIATION

Third Respondent

THE BALENI COMMUNITY Fourth

Respondent

THE SIGIDI COMMUNITY

Fifth Respondent

THE MDATYA COMMUNITY Sixth

Respondent

REASONS FOR THE ORDER GRANTED

LEGODI J,

HEARD ON: 06-07 OCTOBER 2015

JUDGEMENT HANDED DOWN: 13 NOVEMBER 2015

[1] On 6 October 2015 I heard oral argument on an application to be admitted as amicu curiae. The application was brought in an interlocutory application by South African Roads Agency Limited (SANRAL) in terms of which the latter disputed the standing and or authority of the attorneys of record, the first respondent (one Mr RS Zukulu), the 5th Respondent (Sigidi Community) and the 5th Respondent (Mdatya Community). After having heard oral argument on the application to be admitted as amicus curiae I dismissed the application without giving reasons. I now do so. Before that, I want to mention that after the dismissal of the application and after a brief engagement with counsel for SANRAL (the applicant in the interlocutory application) the parties reached an agreement to have the latter application postponed sine die in an attempt to resolve the issues or some of the issues in the interlocutory application.

[2] The amicus curiae in the present case is the University of Cape Town, acting through its Centre for Law and Society (CLS) situated at Rodenbosch, Cape Town. The deponent to the founding affidavit in the application is Aninka Claassen who deposed to the affidavit as the Director of the Rural Women's Action Research Programme, based within the CLS of the Faculty of Law of the University of Cape Town. I do

not find it necessary to deal with the long history of the work done by CLS and the kind of research work done by it. It suffices to mention that CLS is said to have developed a strong focus on issues of customary law with regard to empirical research to ascertain the nature and content of 'living customary law'. Furthermore, their researchers are said to have published widely in peer-reviewed

journals on issues pertaining to the interface between 'official' and 'living customary law' as distinguished by the Constitutional Court.

[3] CLS is also said to have developed a particular focus on research into the challenges interface of customary law with other sources of law under the Constitution and that a particular issue relates to the representation of customary communities through statutory structures notably created in terms of Traditional Leadership and Governance Framework Act 41 of 2003 (Framework Act). The Eastern Cape Traditional leadership and Governance also came into being and that all of these have caused the difficulties to arise and that its research in this regard has specified empirical legal and historical aspects.

[4] Coming back to the amicus curiae application, counsel for the amicus started by identifying the issues that require to be considered by this court. First, the requirement for an application of this nature, secondly, the relevance of the facts upon which the application is based, thirdly, the constitutionality of the issues sought to be brought to the attention of the court and lastly, the impartiality of the amicus curiae. I prefer to considerate more on the latter aspect and then proceed to deal with the relevance of the issues sought to be brought to the attention of this court. I will do so, seen in the light of the submissions made by counsel on behalf of SANRAL.

DEFINATION AND PROCEDURE

[5] The word "amicus curiae' is a Latin word which means a 'friend of the court'. This is the name for a brief filed with the court by someone who is not a party to the case. It can be a person with strong views on the subject matter of an action, but not a party to the action. An amicus curiae educates the court on points of law that are in doubt, but relevant to the proceedings. It also gathers or organizes information or raises awareness about some aspects of the case that the court might miss. An amicus curiae must have some knowledge or perspective that makes her or his views valuable to the court.

[6] The application has been brought pursuant to the provisions of Rule 16A(1) in terms of which any person raising a constitutional issue in an application or action shall give notice thereof to the registrar at the time of filing the relevant affidavit or pleading. In terms of subrule (2) thereof, any interested party in a constitutional issue raised in proceedings before a court may, with the written consent of all the parties to the proceedings, given not later than 20 days after the filing of the affidavit or pleading in which the constitutional issue was first raised, be admitted therein as amicus curiae upon such terms and conditions as may be agreed upon in writing of the parties. However, if the interested party contemplated in subrule (2) is unable to obtain the written consent as contemplated therein, he or she may within five days of the expiry of the 20 day period prescribed in that subrule, apply to the court to be admitted as an amicus curiae in the proceedings. SANRAL did not give the consent as required in subrule (2) of Rule 16A and thus the application before me.

[7] In deciding whether to admit any party as amicus curiae, the court will consider whether the submissions by amicus curiae will give the court assistance which the court would not otherwise enjoy, whether the submissions the amicus curiae wishes to advise are relevant and whether the issues are new and of a constitutional nature. Lastly, the amicus curiae should not introduce new contention based on fresh evidence and impartiality on the part of amicus curiae is important.

[8] In the case of National Treasury and Others v Opposition to Urban tolling Alliance and Others 2012 (6) SA 223 (CC) at para 13 Moseneke DCJ states:

" I do not propose to revisit the ideal attributes of a party that seeks to be admitted as a friend of the court. It is sufficient to observe that an amicus must make submissions that will be useful to the court, and which differ from those of the parties. In other words, the submissions must be directed at assisting the court to arrive at a proper and just outcome in a matter which the friend of the court does not have direct or substantial interest as a party or litigant. This does not mean an amicus may not urge upon a court to reach a particular outcome. However it may do so only in the course of assisting a court to arrive at a just outcome and not to serve or bolster a sectarian or partisan interest against any of the parties in litigation".

IMPARTIALITY OF THE AMICUS

[9] In paragraph 42 of the founding affidavit the amicus deals with its alleged impartiality in the proceedings as follows:

"42. It is not the intention of CLS to weigh in on the particular factual disputes that have arisen between the parties in this interlocutory application. Rather, we want to assist the court in understanding the nature and content of the applicable customary law and evaluate the relevance and legitimacy of the parties' versions in that light".

[10] The amicus then continues in paragraphs 43 and 44 of the founding affidavit as follows:

"43. CLS seeks that all the evidence contained in this part and the relevant attachments is admitted as envisaged in the Rule 7 application.

44. With this in mind, this part is divided as follows:

44.1 Evidence regarding the nature of customary law;

44.2 The nature of land rights and how these relate to governance and decision making;

44.3 The principles of decision making in customary law with specified reference of the AmaPondo;

44.4 The status of 'sub-communities within the AmaPondo traditional community".

[11] During oral argument counsel for SANRAL took a swipe at the statement in paragraph 42 of the founding affidavit and quoted in paragraph 9 of this judgment. It is a smoke screen riddled with lack of full disclosure to enable the court to test the impartiality of the amicus and its non-sectarian or partisan interest against SANRAL, so was the contention. The criticism by SANRAL in my view should be seen in the context of a further statement by the amicus. In paragraph 112 of its founding affidavit the amicus states:

"In the circumstances, I submit that Sigid and Mdatya Communities have clear legal identities in terms of customary law and should as a result have clear legal standing to a customary community recognised in terms of the applicable statutory framework".

I refer later in this judgment to the customary law mentioned in the statement when I deal with the relevance of the issue the amicus

wishes to bring to the attention of the court.

[12] The statement in paragraph 112 of the founding affidavit is piercing through the heart of the dispute in the interlocutory

application. The dispute in the interlocutory application is defined in SANRAL's written heads inter alia as being: "Whether for the purposes of the review, the applicants have established that the Sigidi and Mdatya Community have legal standing".

[13] It is the nature of the stance taken by the amicus as indicated in paragraph 112 of its founding affidavit that SANRAL says its impartiality, must be scrutinized and rejected seen in the light of the followings:

13.1 On 11 June 2015 amicus deposed to its founding affidavit motivating the reasons why it should be admitted in the interlocutory application. When it did so, it did not disclose the circumstances under which it became aware of the dispute between SANRAL and the rest of the respondents in the interlocutory application and neither did it mention any acquaintance with the attorneys Cullinan and Associates. The latter are attorneys of record or instructing attorneys for the respondents whose mandate is the subject of a dispute in the interlocutory application.

13.2 In paragraph 113 of the founding affidavit, the amicus states that it did not become aware of the matter until the proceedings have progressed far into the exchanged of pleadings. Then on 7 May 2015 it sought written consent from the parties in the interlocutory application to be admitted in the proceedings.

The amicus did not indicate when it became aware of the dispute in the interlocutory application and neither did it mention the

circumstances under which it became aware of the nature of the dispute. SANRAL declined the request in its letter dated 8 May 2015.

13.2.1 The letter of 7 May 2015 and the founding affidavit deposed to on 11 June 2015 were branded by counsel on behalf of SANRAL as half-truth, because the amicus omitted 'the very reason' why it wanted to be admitted as a friend of the court. The criticism was prompted by what was disclosed in the replying affidavit in response to a challenge by SANRAL which challenge was stated in the answering affidavit as follows:

"30.2 .. . CLS has a/so not disclosed when, in particular, and the circumstances in which it became aware of the matter. For the purposes of ascertaining the bona fide and independence of CLS, SANRAL invite CLS to make full disclosure regarding when in particular and how CLS became aware of the matter".

13.2.2 The response to the challenge is telling and is stated in amicus's replying affidavit are as follows:

'7. As to the precise circumstances of our intervention in this matter, on 19 April 2015, the attorneys for the respondents in this interlocutory application contacted CLS seeking our advice on the issues of customary law raised by SANRAL in the Rule 7 application. While we had been aware of the main application since 2013, this was the first time we became aware of the interlocutory application and specificissues at stake"

13.3 Counsel for SANRAL during oral argument raised the question: "Why did you not say it at the beginning? The answer is obvious. It created a problem". In my view, the question and the criticism are justified. CLS says in its founding affidavit:

" 13. We have provided research support to parties and amicus involved in cases concerning customary law before the High Court and the Constitutional Court"

13.3.1 If that is so, the amicus must have known better that non-partisan and sectarian in the proceedings when applying for admission as a friend of the court, is important requirement. The duty to disclose any aspect that might give reasonable impression or apprehension of wanting to serve or bolster a sectarian or partisan interest against any of the parties in litigation was critical. On two occasions the amicus did not do. Firstly, when it sought a written consent to be admitted as a friend of the court contemplated in Rule 16A and secondly, when it deposed to the founding affidavit. What is worrying is that the amicus even at this late stage does not explain why the approach to it by the respondents through their attorneys was not upfront, what advice was given as sought by the respondents' attorneys and what militated for the request and application to be admitted as the friend of the court against just giving an advice to the respondents as requested.

13.5 Another worrying feature is stated in paragraph 8 of the replying affidavit as follows:

"CLS sent a researcher, Mr Thiyane Duda to the area the following week (from 23 April 2015) to get a sense of the significance of theissues raised in this particular circumstance - namely, whether in fact a number of directly affected people opposed the toll road, whether they had previously chosen Cullinan and Associates as their legal representatives and whether they continued to endorse Cullinan and Associates. If so, I was of the view that CLS needed to urgently prepare an amicus curiae on the issue of legal standing of individuals and groupings within the boundaries of statutory recognised traditional council".

13.6 Wanting to know a number of people directly affected and opposed to the toll road, whether they had previously chosen Cullinan and Associates as their representatives and whether the respondents continued to endorse Cullinan and Associates are all not constitutional issues. These are issues which the attorneys and the respondents had a duty to investigate, persue and to respond positively to the challenge of standing and authority raised by SANRAL. The respondents did not do so. Instead, the amicus did. The statement gives the impression that the amicus was coming to the assistance of the respondents and their attorneys.

13.7 'They never tell you what the findings were', so was the contention by counsel on behalf of SANRAL during oral argument referring to the statement quoted in paragraph 13.5 above. Amicus seems to content itself with the statement "If so, I was of the view that CLS needed to urgently prepare an application to seek admission as an amicus curiae on the issue of legal standing of individuals and groupings within the boundaries statutorily recognised traditional councils" . This statement is closely linked to the mission by Mr Duda as quoted in paragraph 13.5 above. The latter statement is made without

disclosing the findings of Mr Duda. Counsel for the amicus underrated lack of disclosure of Duda's findings on the basis that they would have been irrelevant. If amicus regarded the enquiries by Mr Duda as being irrelevant, why border in the first place? The other question is what view was held by the deponent to the founding affidavit which justified the 'need to urgently prepare an application to seek admission as amicus curiae'. All of this prompted counsel for SANRAL to make a statement during oral argument as follows:

"You can't smuggle yourself into the proceedings on the pretext of being independent expert with no relationship with one of the parties when in fact your very decision to intervene is clearly related to the desire to assist one of the parties"

13.8 I tend to agree with the statement above and as it would appear later hereunder, even the constitutional issue on customary law is in my view, irrelevant. But, most importantly, the frustration to the first respondent and Cullinan attorneys regarding the challenge of their standing and or authority should be seen in context. That in my view, led to the approach by the respondents' attorneys to approach the amicus for advice on 'customary law'. Whilst initially there appears to have been an instruction by the second respondent, (the Amadiba Community) to Attorneys Cullinan and Associates

to oppose the road tolling in the affected areas, the mandate seems to have been rescinded or terminated. The context referred to above is this:

13.8.1 The review proceedings to set aside the permission for construction of the road toll were launched on 30 Mary 2012 by the respondents in the interlocutory application (applicants in the review proceedings). The issue of standing was raised quite very early thereafter. It was indicated that the issue of standing will be addressed by the respondents in the supplementary founding affidavit. However, when the supplementary affidavit was filed, it was conceded that the third respondent, the Khimbili Communal Property Association did not exist. On the other hand, the fourth respondent, Baleni Community, which is within the Amadiba Community, indicated its disengagement to its opposition to the road toll. Based on all of the above, the first respondent (Zukulu) is no longer claiming to act on behalf of the third and fourth respondents. Zukul himself is a villager within Baleni Community which also falls under Amadiba Traditional Community (formerly called Tribal Authority). The traditional community is headed by Chief Lunga Baleni. The two villages that is, Mdatya and Sigidi also fall under the Amadiba Traditional Community and are headed by either headman and or headwoman respectively.

13.8.2 However, during ongoing consultation process by SANRAL, members of the public from the Mdatya and Sigidi villages are said to have indicated their support for the road toll, including Chief Baleni who is also the Chairperson of Amadiba Community. As a result, SANRAL caused a letter to be written to Attorneys Cullinan regarding the legal standing of the respondents to act as applicants in the main application and the authority of attorneys Cullinan was also questioned. Cullinan and associates attorneys instead of providing any authority from their purported clients and subsequent to the letter of 24 March 2014 from SANRAL, an authorization form from Umgungundlovu Traditional Authority on behalf of Sigidi and Mdatya villages were provided. Such authority did not come from Chief Baleni or from Amadiba Traditional council or community as one would have expected. It is common cause that these villages fall under Amadiba Traditional Council.

13.8.3 On 27 May 2014, SANRAL received a letter from Amadiba Traditional Community signed by Chief Baleni in which support for the N2 Wild Coast Toll Project was expressed. There was also a statement by King Zanozuko Siqcau who also supported the toll. A further statement to this effect was also made in the letter of 22 May 2014 in which it was inter alia recorded:

". . . purported lawyers and/or representatives of communities are opportunists that have no mandate to act for this community".

18.3.4 The statement was clearly directed at Zukulu and attorneys Cullinan. It was as a result of these events and a letter dated 22 May 2014, that the interlocutory application was launched challenging standing and authority. The approach to amicus by Cullinan attorneys for advice was brought into play as a result of these developments. During or about December 2014 a further confirmation of the support from Chief Baleni was received. This however was heavily contested, the fifth and sixth respondents alleging that their signatures on the supporting affidavits were forged.

[14] The context set out above is significant. It is a reflection of desperation with which the amicus was approached for advice. Instead of the advice been given, the amicus decided to be ceased with the issue of authority and standing by seeking to argue that, it is founded on the 'living custom' of the Amadiba Traditional Community within Mdatya, and Sigidi villages. A friend of the court must be a true friend of the court not surrounded by cloud of partisan, sectarian and lack impartially. Any apprehension of lack of impartiality and reasonable suspicion of bias should be enough to disqualify amicus to be admitted as such in any legal proceedings. Amicus as a friend of the court must be blameless to ensure that the integrity of the court and its impartiality in adjudicating on matters are not in any manner questioned. To admit the amicus as a friend of the court in the prevailing circumstances will only serve to compromise its integrity, but also that of the court, its independence and impartiality and that cannot be allowed to happen. It was on all of the above that the application to be admitted as amicus curiae was refused. I now turn to deal with the other aspects of the dispute in the amicus's application.

RELEVANCE AND RELIABILITY

[15] The amicus in its founding affidavit refers to a 'living custom'. This was repeated during oral argument. Its researchers have 'published widely peer reviewed journals to interface between 'official' and living customary law as distinguished by the

Constitutional Court', so the statement goes.

[16] During oral argument counsel for the amicus developed the argument on living customary law relevant to the present proceedings

as follows:

The people within Sigidi and Mdatya villages have for many years in accordance with their customary practice took decisions as villagers

even when such decisions were contrary to the decisions by the tribe or entire community. This decision making practice

continues to be part of the people amongst the Amapondo community within their villages and that therefore irrespective of whatever

decision not to oppose the road toll might have been taken by the Amadiba Transitional Community and its chairperson, Chief Baleni, the people within Sigidi and Mdatya villages were not bound thereby'.

[17] There are two problems with this submission. That is, its relevance to the present proceedings and the reliability of evidence to support the so called 'living customary law' within the two villages. The amicus says this submission is a new issue which has not been raised by any of the parties in the interlocutory application. Assuming that amicus is right in this regard, the difficulty is that this is not the basis on which the people within Sigidi and Mdatya villages claim to have the standing and authority to instruct either Zukulu and or attorneys Cullinan to oppose the construction of the Wild Coast N2 toll road. In other words, the amicus want to introduce a ground for standing and authority which is not relied upon by the fifth and sixth respondents. That makes the ground of standing and authority which they seek to introduce irrelevant. This alone should bring to an end their application to be admitted as amicus curiae.

[18] However, insofar as the amicus may wish to rely on what Zukulu says, that should also be seen in context. In paragraph 91 of amicus's founding affidavit, is stated:

"The description of Mr Zukulu for the applicants, of the decision making processes of the Amampondo is consistent with my understanding of both the nature of land rights and how it relates to decision making. His emphasis on the normative value of 'cohesion' in the community should not be understood as implying that the ideal cohesion outweighs the importance of individuals being encouraged and indeed to voice their concerns with an issue".

[19] If the statement was meant to suggest that 'the living customary law' in decision making process by individual villagers, was averred by Mr Zukulu, then what the amicus is seeking to introduce is not a new issue. I turn now to deal with another difficulty confronting the amicus on the living customary law.

RELIABILITY

[20] The deponent to the amicus's replying affidavit in seeking to contradict Prof. Mqeke's expert opinion, who filed a report on behalf of SANRAL specifically to deal with the customary law and practice by the communities within the Amadiba Traditional Communities, starts by suggesting that Prof. Mqeke's report was unreliable as it is based, I want to believe, on unreliable hearsay evidence. Then in paragraph 14 of the amicus replying affidavit, is concluded:

"... The issue Prof Mqeke addresses are purely legal issues. They are questions that this court can and must decide. I have been advised that expert opinions on the legal issues that are ultimately for a court to decide are inadmissible. Expert opinion is limited to issues other than legal issues".

[21] What is conveyed above is that, a clear legal issue is for determination by the court. But where such legal issues are based and ought to be determined on facts, the court will be guided by the facts of each case whether a particular legal principle is applicable. In the present case, the issue is whether status of living customary law on issues of standing and governance or

authority is practised and alive. For the purpose of the existence of such a practice, the statement in paragraph 70 of

the amicus's replying affidavit is telling. It reads:

"I accept that the issue of standing is, in part an issue of act. Those facts in this matter are not within my personal knowledge and I have thus not made any a/legations on those issues".

[22] What drove the deponent or amicus to launch the application to be admitted as a friend of the court was founded on the send away to the villages of Mr Thiyane Duda. The statement in paragraph 8 of the amicus's replying affidavit and quoted in paragraph 13.5 of this judgment says it all. Therefore, reliance on the amicus's expert opinion for the existence of 'living customary law' on the decision making process by the communities within Sigidi and Mdatya villages should be found to be lacking, bearing in mind that these communities did not rely on what is said to be their living customary law' and practice for standing and authority.

[24] These are the reasons for the dismissal of the amicus's application to be admitted as a friend of the

court.

_______________________________

M F LEGODI

JUDGE OF THE HIGH COURT

FOR THE APPLICANT:

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