Tsajoa Royal Family and Another v Premier, North West Province and Others (HC11/2015) [2016] ZANWHC 71 (2 December 2016)

IN THE NORTH WEST HIGH COURT

MAHIKENG

Civil Appeal HC 11/2015

In the matter between:

TSAJOA ROYAL FAMILY

1ST Appellant

DAVID TSAJOA

2ND Appellant

and

THE PREMIER, NORTH WEST PROVINCE

1ST Respondent

THE COMMISSION OF TRADITIONAL LEADERSHIP

DISPUTES AND CLAIMS

2ND Respondent

MEC: DEPARTMENT OF CORPORATE GORVENANCE

AND TRADITIONAL AFFAIRS NORTH WEST PROVINCE

3RD Respondent

THE CHAIRPERSON: PROVINCIAL HOUSE OF

4TH Respondent

TRADITIONAL LEADERS N.W. PROVINCE

LEHLOMELA EMMANUEL LION

5TH Respondent

LION ROYAL FAMILY

6TH Respondent

BATAUNG BA HLALELE TRIBAL AUTHORITY

7TH Respondent

FULL BENCH CIVIL APPEAL

HENDRICKS J, KGOELE J, GUTTA J

DATE OF HEARING

: 26 August 2016

DATE OF JUDGMENT : 02 December 2016

FOR THE APPELLANTS :

Advocate Mmolawa

FOR THE RESPONDENTS : Mr Moshoana

JUDGMENT

KGOELE J:

A. INTRODUCTION

[1] This matter relates to a traditional leadership dispute dating as far back to 1955. The dispute has resulted in various criminal, executive and civil litigations. These include an application brought to court as far back as 1956, criminal proceedings brought against the predecessors of the current disputants in current traditional leadership dispute, as well as actions taken by various Governments to address the dispute also dating back to 1955. However, the dispute remains smouldering despite all these actions.

[2] In sequel of these conflicting claims the dispute also served before the Provincial Commission on Traditional Leadership disputes and claims (the Second respondent). In compliance with Section 28(11) of the Traditional Leadership and Governance Framework Amendment Act 23 of 2009 (the Amendment Act), the second respondent had to deal with all those disputes and claims that were still pending before the previous Commission as at 1 February 2010. It appears from the records of the second respondent that the fifth respondent had previously on 28 October

2008 lodged a claim with the second respondent for recognition as Senior Traditional leader of Bataung Ba Hlalele tribe.

Subsequent to this and during the term of the second respondent on 10 July 2012, the appellant also lodged a claim with the second

respondent for the headmanship of the Bataung Traditional Community. On 11 July 2012 the fifth respondent lodged a second claim for his elevation from the status of a headman to Senior Traditional Leader of Bataung ba Hlalele Tribe.

[3] As a result of these conflicting claims relating to the same community, the appellant, the fifth respondent and other interested

parties were invited by the second respondent to a briefing session during July 2012 which was followed by two public hearings on the 7 November 2012 and 7 February 2013 respectively. During the hearing the claimants were according to the chairperson of the second respondent given an opportunity to present their respective cases or claims and ask each other questions. Members of the community present were also given an opportunity to give their inputs on the claims. The second respondent made recommendations to the first respondent. The first respondent accepted in toto the recommendations of the second respondent. The practical effect of the acceptance of the first respondent of all the recommendations

of the second respondent was that the second appellant was accordingly appointed as the headman of this community and the fifth

respondent was deposed. It is this outcome which led to the current litigation.

B. THE REVIEW APPLICATION

[4] Aggrieved by this, the fifth respondent brought an application to review and set aside the acceptance of the recommendations of the second respondent by the first respondent (the main application). The appellant was the fifth respondent in this application that was brought by the fifth respondent in this matter which served before Gura J (the Court a quo). The basis of the application comprised of several myriad of grounds which were basically conflated and attacked both the findings of the second respondent and the decision of the first respondent.

[5] The relevant facts pertinent to the conflicting claims that led to the second respondent to investigate the traditional leadership

dispute of the appellant and the fifth respondent, together with its findings and recommendations were succinctly summarised by the Court a quo in its judgment. For the sake of avoiding prolixity and unnecessary repetition, they will not be repeated in this judgment.

[6] It is important at this stage to set out the prayers/reliefs that were sought by the fifth respondent’s (applicant then) in the Court a quo. They serve as the matrix of this appeal. They are couched as follows:-

“1. That the Respondents are called upon to show cause why the following orders should not be made:-

1.1 That the acceptance by the First respondent of the North West Province on 23 July 2013, of the following recommendations by the Second respondent on Traditional Disputes and Claims, namely:

1.1.1 That the Sechaba-sa-Bataung Traditional Authority was only established in 1961;

1.1.2 That John Mota Tsajoa was the first traditional leader of the Sechaba-sa-Bataung Tribal Authority;

1.1.3 That the Tsajoa Royal Family is the rightful custodial of traditional leadership in Sechaba-sa-Bataung tribe;

1.1.4 That Lehlomela Emmanuel Lion be removed from the headmanship of the Bataung ba Hlalele Tribe, previously known as the Sechaba-sa-Bataung

Tribe and now to be known as the Maboloka Tribe; and

1.1.5 That the status of headmanship of the Bataung Ba Hlalele should not be elevated to that of senior traditional leadership because the claim did not meet the criteria for Senior Traditional Leadership, should not be reviewed and set aside on the basis that:

1.2 Gross irregularities were committed in the proceedings, in that:

(a) The decision and/or recommendation is contrary to the first respondent’s predecessor in title’s previous decision;

(b) The first and second respondents were not entitled and/or at liberty to take the decisions that they did without the involvement of the Royal Family;

(c) The Second respondent on Traditional Disputes and Claims (second respondent) and consequently the First respondent, North West Province, did not apply its/her mind to the matter properly or at all;

1.3

The decision was not in accordance with the law;

1.4 The decision was so unreasonable that no reasonable body, with full knowledge of all the applicable facts would have reached the same decision, as the Second respondent on Traditional Disputes and Claims did;

1.5 The decision and recommendation is ambiguous and incomprehensible.

1.6 That the status of headmanship of the Bataung ba Hlalele be elevated to that of senior traditional leadership and that Lehlomela Emmanuel Lion be recognized as the senior traditional leader of the Bataung ba Hlalele/Maboloka Tribal Authority.

1.7 That the first respondent’s recognition of the Tsajoa Royal Family (5threspondent) as a rightful custodian of traditional leadership in Maboloka village be reviewed and set aside on the basis that same was ultra vires the first respondent.

1.8 That the first respondent’s recognition of David Tsajoa (6threspondent) as headman of the Maboloka Tribal Authority be reviewed and set aside.

1.9

That the recognition of the Sechaba-sa-Bataung ba Hlalele tribe by the Governor-General of the Union of South Africa (the first respondent’s predecessor in authority) on 23 January 1942, in Executive Council Minute 66, be restored and upheld.

1.10 That the second applicant’s recognition as the rightful custodian of the traditional leadership of Sechaba-sa-Bataung ba Hlalele tribe be restored and upheld.

1.11 That the first applicant’s position as headman of the Bataung ba Hlalele as previously recognized by the first respondent on 18 April 2009 be restored and upheld.

[7] Only the first and second appellants, (including the second respondents who were still the second respondent then) opposed the

main application. Amongst others, the appellants in their opposition contended that the respondents attack the findings and

recommendations of the second respondent but seek no order to review and set aside same. According to them the failure of the applicants then to seek such an order rendered their application defective. They urged the Court a quo (as per Gura J) to find that the application on this basis alone should be dismissed.

[8] The Court a quo delivered a judgment on the 27th January 2015 wherein the following order was made:-

2.1 that the decision of the First respondent be reviewed and set aside on all aspects except on the elevation of the headman to that of Senior Traditional Leader;

2.2 On the latter issue (elevation of status of the headman) judgment was reserved;

2.3 The Court directed that the First respondent, the Second respondent, fifth and sixth respondents should pay the costs;

C. THE APPEAL

[9] On the 19th February 2015 the appellant filed an application for leave to appeal the judgment of the Court a quo. The Court a quo delivered a judgment in the application for leave to appeal on the 29th May 2015 granting them leave to appeal to the Full Bench of this Division only on one of the eleven grounds set out in the application

for leave to appeal. The appellant aggrieved by this, applied for a special leave to the Supreme Court of Appeal (SCA) to appeal the remainder of the grounds. The special leave was granted on the 18th October 2015 by the SCA on all of the grounds, hence this appeal.

[10] The appellants’ grounds of appeal cover a wide spectrum of issues on both findings of fact and the law. A thorough

analysis of all the grounds reveals that they are intertwined, repetitive and some are just an expansion of others. In my

view, this multiplicity of grounds can be succinctly grouped into two. The first relates to a question whether the Court a quo erred in not finding that the findings and recommendations of the second respondent constituted an administrative act subject to review in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The second relates to whether the Court a quo erred in setting aside the decision of the first respondent. I now turn to deal with these grounds.

Findings and recommendations of the Second respondent an

administrative act or not

[11] The submissions by the appellants are that the Court a quo ought to have found that in performing its functions and exercising its powers, the second respondent was performing a public function in the public interest and that the performance of its functions and the exercise of it including the making of its findings and

recommendations constitute a decision of the second respondent with legal implications.

[12] The appellants furthermore contend that the Court a quo failed, to correctly and properly interpret the provisions of the relevant sections of the Amendment Act in the light of the decision of the Constitutional Court in Bapedi Maroba Mamone v Second respondent on Traditional Leadership Disputes and Claims and others [2014] ZACC 36. On correct and proper interpretation of the provisions of the Amendment Act, the Court ought to have found that:-

12.1 The second respondent was authorised to decide on any traditional leadership dispute and claim as contemplated in subsection (2) arising anywhere in the country. Furthermore that, the alleged failure by the second respondent to conduct a proper investigation into the claim, constitutes a failure to perform a statutory function and therefore an administrative action.

12.2 The findings and recommendations of the second respondent constitutes a decision of the second respondent and therefore constitute an administrative decision which the respondents ought to have sought the review thereof to enable the Court a quo to grant any relief stemming therefrom.

[13] The appellants further contend that in conducting the investigation and making a recommendation, the second respondent performed an administrative act subject to review on its own regardless of whether first respondent accepted or disagreed with second respondent’s

recommendation.

[14] To expand on this proposition the appellants contend that the recommendations of the second respondent have direct external legal effect. An administrative action is defined in Section 1 of PAJA to be, inter alia, a decision which has direct external legal effect. The findings and recommendations of the second respondent on their own have direct external legal effect. The recommendations of the second respondent and the decision of the first respondent are separate administrative acts of which each is competent to be reviewed.

[15] The respondents’ legal representative on the other hand submitted that the ground is baseless and without merit because in terms of the Amendment Act the second respondent has powers to recommend only and not to decide. According to their counsel it ought to be remembered that the old Section 26 clothed the second respondent with powers to make a decision. This situation was altered when the powers were reduced. He referred this Court to the case of Matiwane v President of the Republic of SA [2014] 2 All SA 419 (ECM).

[16] The respondents’ legal representative furthermore relied heavily on the case of New Clicks SA (Pty) Ltd v Msimang NO and another, PSSA and other v Minister of Health [2005] 1 All SA 196 (C) where the Full Bench of the High Court held as follows:-

“[43] To the extent that the applicants seek to have the recommendations to be reviewed and set aside in terms of the

provisions of the Promotion of Administrative Justice the applicants’ challenge on this ground cannot succeed for the simple reason that the conduct of the Committee, culminating in the recommendations, does not constitute an administrative action within the meaning of the Promotion of Administrative Justice Act”.

[17] A further authority that he relied on is the case of the Minister of Health and another v New Clicks SA (Pty) Ltd and others [2006] JOL 15636 (CC) wherein the Constitutional Court per Chaskalson CJ, writing the majority judgment held:-

“[136] The making of regulations in terms of Section 22G… involves a two stage process. First, a recommendation by the Pricing Committee and second a decision by the Minister as to whether or not to accept the recommendation. [emphasis added]

Further:-

[137] In the circumstances of the present case, to view the two stages of the process as unrelated, separate and independent decisions, each on its own having to be subjected to PAJA, would be to put form over substance.

[18] The respondents’ argument based on the two latter cases quoted above is that, similarly to this matter, the Amendment Act contemplates a two stage process. First respondent in casu is only obligated to make a decision on the recommendations. A decision can either be to accept or reject them. If rejected,

all that the functionary is obliged to do is to give reasons for such rejection.

[19] Having agreed with the recommendations, their argument continued, it simply means there is one decision. Like in the New Clicks matter quoted in paragraph 16 above, ultimately there had to be one decision made by the first respondent on recommendation of the second respondent. Accordingly, the respondent’s legal representative, borrowing from this case submitted that, to seek to review the recommendations separately would be to put form over substance. In the light of the authorities cited above, which authorities are binding on this Court by application of the stare decisis principle, he finally submitted that this Court cannot come to a different conclusion on this aspect.

[20] To answer the question whether the second respondent (Commission) performed an administrative act subject to review on its own regardless of whether the first respondent accepted or disagreed with the second respondent’s recommendations the legal framework under which the second respondent operates had to be looked at first.

[21] The current Commission which made the recommendations in this matter was established in terms of Section 22 of the Traditional Leadership and Governance Frame Work Act 41 of 2003 which has been subsequently amended by Act 23 of 2009 (The Amendment Act). Appointment of members of the second respondent is governed by Section 23 thereof. The deponent to the second respondent’s answering affidavit in the main application that served before the Court a quo makes it clear in paragraph 2 thereof that he was appointed as a National Chairperson of the National Commission in 2011 and was furthermore re-assigned as Chairperson of the North West Provincial Committee on 3 April 2014 (Herein referred to as the Second respondent in this judgment).

[22] Section 26A of the Amendment Act provides for the establishment of a Provincial Committee to deal with disputes and claims relating to traditional leadership. In terms of subsection 6 of Section 26A a Provincial Committee makes final recommendations on all the matters delegated to it in terms of Section 25(6) with a provision that where a committee is of the view that exceptional circumstances exist, it may refer the matter to the (National) Commission for advice.

[23] The old Act, prior to its amendment which came into effect on 1 February 2010, gave the second respondent through Section 25(2)(a)

the authority to investigate, either on request or on its own accord, the disputes tabulated in Section 25(1)(b)(i) – (ix) of the Act. However in terms of the Amendment Act the second respondent can only investigate a dispute once it has been lodged by any person having an interest therein. This is evident from a reading of section 25(2) and (b) of the Act.

[24] Secondly, as to what constitute administrations action should also be looked at having regard to PAJA. An administrative action is defined in Section 1 of PAJA to be, inter alia, a decision which adversely affects the rights of any person and which had a direct, external legal effect.

[25] Thirdly, the Constitution of the Republic of South Africa, (the Constitution) should be looked at to resolve this question. An organ of the state is defined in Section 239 of the Constitution as any

functionary or institution performing a public function or exercising a power in terms of any legislation.

[26] From all of the aforementioned legal framework it is clear that the second respondent is one of the bodies created under the Act. Amongst others, its function is to investigate and make recommendations in regard to the disputes and claims arising between or within traditional communities. It is also clear that the second respondent has powers to make recommendations of a final nature on a dispute lodged by any person having an interest therein. It is furthermore clear that the recommendations of the second respondent directly affects the rights of a person(s) that lodged a claim or dispute and has a direct and external legal effect even before the first respondent decides to accept or reject it. The second respondent investigated the dispute in this matter and made recommendations in this regard. The action performed by the second respondent falls squarely within the definition of administrative action within the ambit of PAJA. In my view, the recommendations are not just mere recommendations as contended by the fifth respondent but amounts to a decision which is separate and has legal consequences which is subject to and can be reviewed in terms of PAJA.

[27] This view find solace in the following paragraph which I quote from the case of New Clicks v Msimang and Others, supra, which was heavily relied upon by the respondents.

“42. As regards the term “legal effect”, what this may view would entail is that the administrative action decision must be a lengthy binding determination of individual rights. In other words, the recommendations, to constitute an administrative

action, must either establish, change or withdraw existing rights. The recommendations of the Committee do not have any of these

attributes. The principles of administrative justice apply to administrative action only and the Committee’s recommendations fall short of this”. [My own emphasis]

[28] It therefore becomes apparent that the two New Clicks cases relied upon by the respondents in their submissions are distinguishable from the facts of this case. They were dealing with the recommendations of the Pricing Committee and not of a Commission. It therefore cannot be authority in this matter. On the contrary, the underlined words in paragraph [26] above, are key and supports the submission of the appellants.

[29] In dealing with this issue the Court a quo held:-

“Clearly there is no merit in this argument. The findings and recommendations of the Second respondent have no potential to

adversely affect anyone’s rights as they stand. Only once the administrative functionary adopts the recommendation is a final act taken. The effect of the latter decision (e.g. by the First respondent) has a potential to affect anyone’s rights because it is a final determination of an issue (New Clicks SA (Pty) Ltd v Tshabalala-Msimang and Another NNO 2005 (2) SA 530 (CPD)”.

[30] I do not agree with this finding by the Court a quo. A thorough reading of the two cases of New Clicks heavily relied upon by the respondents above, reveals the following:-

· They both deal with the recommendations by the Pricing Committee;

· The two stage process of making the regulations (the Pricing Committee’s recommendations and the decision of the Minister) had to be one decision to which both agree;

· Neither had the power to take a binding decision without the concurrence of the other;

· It was only if and when agreement was reached, that the regulations could be made;

· Debate between the Pricing Committee and the Minister concerning the regulations to be made would not be inappropriate; and

· The Pricing Committee’s work on the regulations was continuing and ongoing until the Minister agreed.

[31] As already indicated above, the recommendations in this matter are of the Commission who does not have to consult with the first respondent in making its decisions. There is absolutely no room for debate between the first and second respondents and they each could take a decision without the concurrence of the other. As correctly submitted by the appellants, the recommendations of the second respondent and the decision of the first respondent are separate administrative acts of which each is competent to be reviewed. It is also clear that the decision to recommend lies with the second respondent whereas the decision to accept the recommendations and appoint lies with the first respondent. In the case of Bapedi Marota Mamane v Second respondent on Traditional Leadership Disputes and Claims and Others 2015 (3) BCLR 268 (CC), a case decided in terms of the Amendment Act, the Constitutional Court dealt with a review of the recommendations by the second respondent only.

[32] Recognition that the second respondent’s recommendations constitute administrative action presuppose that until that decision is set aside by a competent court on review or overturned in an internal appeal, (if applicable), it remains valid and binding. See: Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) 222 (SCA) para 26. Whether the second respondent recommendations were right or wrong is of no consequence. They exist as a fact until set aside.

[33] In my view, the Court a quo misdirected itself by finding that the recommendations of the second respondent is not a decision subject to review because they do not have the potential of adversely affecting anyone’s rights as they stand. This finding, unfortunately led the Court a quo to embark on an exercise of analysing the facts that were placed or should have been placed before the second respondent which the second respondent dealt with or should have in arriving at its decision. This, the Court a quo did with the aim of reviewing the acceptance by the first respondent of the second respondent’s recommendations. This exercise was in my view not the correct approach to the matter.

Whether the Court a quo erred in setting aside the decision of the

Premier (First respondent)

[34] It is important to indicate at the onset that this heading encapsulates all the other remaining grounds that the appellants

relied on as it will become clearer below. In the amended notice of motion dated 20 May 2014, as well as the accompanying

founding and supplementary affidavits (of the respondents currently) that served before the Court a quo, the respondents in paragraph 1 of its notice of motion seek an order that:-

“the acceptance by the First respondent of the North West Province on the 23 July 2013 of the recommendations by the Second respondent on Traditional Disputes and claims be reviewed and set aside”.

[35] If one looks at the grounds in support of this prayer, the respondents in essence attacks the findings and recommendations of the second respondent. As correctly submitted by the appellants, they seek no order to review and set aside same as a

separate prayer. What the respondents did was to conflate the decision of the first respondent with the recommendations and treated them as one. This is borne by the fact that respondents as applicants then, continuously in their grounds that supported their prayer for review referred to the decision of the Premier and/or recommendations. In addition to the above, it appears that the respondents placed before the Court a quo the information that were or ought to have been placed before the second respondent.

[36] By taking this approach, the respondents faced a fundamental insurmountable difficulty. This approach unfortunately gives an impression that the respondents’ understanding is that the first respondent should in addition to the work done by the second respondent conduct his own investigations as to the disputes of the claimants. This cannot be the case if the Amended Act is considered carefully. The Amended Act only conferred this power to the second respondent.

[37] It furthermore appears that respondents seems to suggest that regardless of the findings and recommendations of the second

respondent, the first respondent should have ignored same and taken a decision outside of the process prescribed by law. The true state of affairs is that the Amendment Act enjoined the first respondent through the second respondent (the Commission) to investigate the dispute, make findings and recommendations to enable him to make a determination afterwards. By this I do not necessarily mean that the first respondent should have or must just accept the recommendations in his determination. The Amendment Act enjoined him to reject the recommendation if he deems appropriate and provide reasons therefor, and furthermore prescribed how the process will thereafter unfold.

[38] Lastly, this stance appears to suggest that the first respondent was supposed to accept the representations the respondents made to the second respondent and ignore the recommendations submitted by the second respondent and make a finding in their favour.

Unfortunately this expectation loses sight of the fact that in terms of the Section 25 of the Amendment Act, the first respondent takes a decision based on the findings and recommendations of the second respondent. Therefore, the material placed before the first respondent is the findings and recommendations of the second respondent. When the first respondent has considered the material placed before him and has followed the procedures prescribed for the consideration of the said findings and recommendations, the first respondent would have acted lawfully and rationally.

[39] The critical importance of the review of the findings and recommendations of the second respondent lies in the fact that the

impugned decision of the first respondent is wholly based on the said findings and recommendations, and to the extent that such findings and recommendations are not reviewed and set aside, they stand as such, regardless of the criticism levelled against the second respondent which is manifest in the application brought by the respondent and the judgment of the Court a quo.

[40] A failure to review and set aside the findings and recommendations of the second respondent entails that there is no findings of unlawfulness or any irregularity on the part of the second respondent. Furthermore, to the extent that the first respondent relied wholly and solely on those findings and recommendations, he could not have acted unlawfully or in an irregular manner if one takes into consideration the provisions of the Amendment Act as to how he must deal with the recommendations. It is further not required of the first respondent to afford any party to the dispute or claim an opportunity to make representation prior to him taking the decision.

[41] In so far as to whether the decision of the first respondent was unreasonable or not, it is trite that the test in a review is primarily concerned with the decision making process and the court must therefore assess whether there has been an infringement of the right to a lawful, reasonable and procedurally fair administrative action. A review is not available where the decision maker had his or her facts correct.

[42] In this matter, a claim was lodged with the second respondent which investigated the claim, made findings and recommendations to the first respondent. The first respondent was required either to accept or reject the recommendations of the second respondent, in which case the first respondent was either required to appoint the person recommended or record his reasons for not accepting the recommendations. The only material placed before the first respondent in taking the decision was the findings and recommendations of the second respondent. The first respondent did not consider any other material nor did he conduct his own investigations. The first respondent in accepting the recommendations was guided by the work of a specialist body on matters of this nature, the second respondent.

[43] In my view, the first respondent did follow the correct methodology in considering the findings and recommendations of the second respondent. The second appellant and the fifth respondent had the opportunity to place information before the second respondent for investigation and determination and not before the first respondent. For the sake of emphasizing this point, I repeat that the power to investigate the claim and to make a determination is vested in the second respondent and not the first respondent. What is of importance is that the first respondent applied such recommendations and treated them as those coming from a specialist body. In my view, when the contents of the report of the second respondent that served before the first respondent is considered cumulatively and objectively, there is not even a single indication that the first respondent failed to establish any facts, or take into account any irrelevant consideration or ignored any relevant facts placed before him in taking the decision. There is therefore in my view no irregularity committed by the first respondent nor did he act unlawfully or irrationally.

[44] In my view, the Court a quo erred in setting aside the decision of the first respondent despite not having found that the first respondent committed an irregularity or that he have acted unlawfully in terms of the provisions of the Amendment Act. The court a quo failed, to properly apply the correct test in review proceedings in terms of Rule 53 of the Uniform Rules of Court. The Court ought to have concerned itself with whether:-

(a) The first respondent had the facts correct when accepting the recommendation of the second respondent;

(b) The first respondent committed an infringement of the right of the applicants to a lawful, reasonable and procedurally fair administration action.

[45] The Court a quo in its judgment embarked on making findings that relates to the findings and recommendations of the second respondent in an attempt, to review the decision of the first respondent. However the Court a quo was not asked to make any order on the findings and recommendations of the second respondent. The Court a quo instead analysed the facts that were in front of the second respondent and or supposed to have been placed before the second respondent.

Unfortunately this analysis served as the matrix of setting aside the first respondent’s decision. The effect hereof is that the findings and recommendations of the second respondent were reviewed by the Court a quo in a situation where it was not called upon to do so and went even further to substitute the second respondent’s decision with its own decision.

[46] The mere fact that the court a quo made findings against the second respondent does not in law translate in wrongdoing on the part of the first respondent. The implication of the judgment of the court a quo is that the finding against the second respondent automatically disqualifies the decision of the first respondent. This is

incorrect. The findings and recommendations of the second respondent does not automatically translate into the fact of a

material error of fact or law against the first respondent, unless he in his or her decision is found to have acted irrationally in the decision he took.

[47] As already alluded to above, the Court a quo erred to consider the facts of this matter and usurp the function of the second respondent as it found in paragraph [85] of its judgment that:-

“…no sufficient evidence was adduced by the fifth and the sixth respondents justifying the allegation that Phillemon Tsajoa’s

deposition by Bophuthatswana was politically motivated”.

[48] Paragraph [80] of that judgment wherein the Court a quo remarked as follows also demonstrates usurpation by the Court a quo of the function of the second respondent.

“In my view therefore, the Commission either ignored some relevant facts and, or, paid insufficient weight to material information. Had it properly applied its mind to all the facts it would have been persuaded to find that the first headman of this tribe was Solomon Lion. Once it had made this finding it would then conclude that the relevant royal family in 1953 (when Lion was deposed) was the Lion Royal Family. In terms of the custom of this tribe, a male from the Lion family would succeed Solomon Lion. The Commission would have found that John T. Tsajoa was not supposed to have been the headman or anyone who succeeds through him.”

Similar findings can also be found in paragraphs 71, 74 and 78 of the judgment of the Court a quo.

[49] In the case of Bapedi Marota Mamone v The Second respondent of Traditional Leadership Dispute and Claiims and Others – Case No. 260/13 SCA it was held that :-

“The setting of the review standard does not mean that the Court can or should substitute their opinion as to what is appropriate for the opinions of those in whom power to make administrative action has been vested. As long as the purpose sought to be achieved by the exercise of public power is within the authority of the functionary and as long as the functionary’s decision, viewed objectively, is rational, a Court cannot interpret with the decision simply because it disagreed with it…”

[50] In Bapedi Marota Mamone, supra, the following was said which I find apposite in this matter:-

“[78] Before considering the factual basis for the applicant’s contentions, it is necessary to sound a note of caution. Our right to just administrative action 39 and PAJA, the legislation enacted to give effect to that right,40 require rigorous scrutiny of And this is particularly so for rationality review under PAJA. Hoexter notes that—

“[a] crucial feature [of rationality review under PAJA] is that it demands merely a rational connection – not perfect or ideal

rationality. In a different context Davis J has described a rational connection test of this sort as ‘relatively deferential’

because it calls for ‘rationality and justification rather than the substitution of the Court’s opinion for that of the tribunal on the basis that it finds the decision . . . substantively incorrect’.”42 (Footnotes omitted.)

[79] A level of deference is necessary – and this is especially the case where matters fall within the special expertise of a particular decision-making body. We should, as this Court counselled in Bato Star, treat the decisions of administrative bodies with “appropriate respect” and “give due weight to findings of fact . . . made by those with special expertise and experience”.43

[80] This has resonance here. The Second respondent is a specialist body constituted by experts “who are knowledgeable regarding customs and the institution of traditional leadership”.

44 As this Court held in Nxumalo, it is appropriate to treat its decisions with some deference.45 When considering a claim, the Second respondent is required by section 25(3)(a) of the Framework Act to—

“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.”

Notably, this provision tasks the Second respondent not only with applying the relevant customary law to the case before it, but also with determining what that law was at the relevant time. This latter question depends primarily on historical and social facts, which the Second respondent must establish through evidence led before it and its own investigation.

[81] In this case that investigation ran over two years. It covered a wealth of historical material, which this Court cannot easily assess. It also included a series of hearings, in which the applicant participated extensively. First, the Second respondent conducted

separate hearings for the Sekhukhune and Mamone royal families, whose representatives gave testimony under oath and referred the Second respondent to supplementary research material. After these hearings the Second respondent conducted its own research, on the basis of which it drafted preliminary statements which it put to both royal families. The statements were about whether Kgoši Sekhukhune I successfully challenged Kgoši Mampuru II in 1861 and whether, after returning to kill Kgoši Sekhukhune I, Kgoši Mampuru II ascended the throne. Both royal families commented on these in writing. Thereafter they attended a joint hearing where their testimony and arguments were again heard. The Second respondent’s 40-page report was released some months later.

[51] A case that clearly demonstrate that the recommendations of the second respondent and the decision of the first respondent are separate, is the case of Nxumalo v President of RSA and Others 2014 (12) BCLR 1457 (CC). Paragraph [9] thereof reveals that the review application in that matter concerned both. It is couched as follow:-

“The applicant brought an application in the North Gauteng High Court to have the President’s decision as well as the Second respondent’s decision reviewed and set aside. Tuchten J dismissed the application. The applicant

unsuccessfully applied to the High Court for leave to appeal. He then petitioned the Supreme Court of Appeal for leave to appeal. His petition was lodged out of time. Accordingly, he lodged an application for condonation. The Supreme Court of Appeal dismissed the application for condonation on the basis that there were no reasonable prospects of success for an appeal” [My own emphasis]

[52] Paragraphs 17,18,19,20 and 21 of the Nxumalo judgment, supra, demonstrate that up until the second respondent’s decision is set aside it remains valid. Further that, a decision can be made to set aside a decision of one functionary only, and the other remains. This signifies that these are two distinct decisions which remain valid until each is set aside. Lastly, the principle of difference was also emphasized. It is best to quote these paragraphs to emphasise this:-

“17 What should this Court do about the Second respondent’s decision? In his application in the High Court, the applicant also sought to have the Second respondent’s decision reviewed and set aside. Before us he also seeks to appeal against that part of the decision of the High Court that related to the Second respondent’s decision. In Sigcau, where the applicant had sought to have not only the President’s notice set aside but also the Second respondent’s decision, we did not set aside the Second respondent’s decision. The order of the High Court dismissing the applicant’s review and set aside.

18 It seems to me that the result was not only that in Sigcau the Second respondent’s decision still stood but also that the applicant’s review application in respect of the Second respondent’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 Second respondent’s decision reviewed and set aside.

19. What should this Court do with the application for leave to appeal against the High Court’s Order dismissing the applicant’s application to have the decision of the Second respondent reviewed and set aside? It appears to me that we should deal with it. Since leave to appeal against the High Court’s order concerning the President’s decision is to be granted, leave to appeal against the High Court’s decision concerning the Second respondent’s decision is also to be granted. It is in the interests of justice that the matters be dealt with in this way.

20. Broadly speaking, there are two bases upon which the applicant attacks the judgment of the High Court concerning the Second respondent’s dismissal of his claim. The one is that the High Court was wrong to show deference to the decision of the Second respondent. The other is that the High Court should have found that the Second respondent had erred in its conclusion that the kingdom of amaShangana had disintegrated or had been destroyed around 1894 or 1897 and, certainly, long before the date of 1 September 1927.

21. There is no merit in the applicant’s criticisms of the High Court’s approach in showing deference to the Second respondent. The Second respondent was a specialist body established by an Act of Parliament to deal with a special category of disputes affecting a large section of society. It was required to apply customary law in adjudicating those disputes. Members of the Second respondent were required to have expertise in traditions and customs. The High Court cannot be criticised for its approach demonstrates that up until the Second respondent’s decision is set aside it remain valid, further that a decision can be made to set a decision of one functionary only, and the other remains.

D. CONCLUSION

[53] I therefore come to the conclusion that the Court a quo erred in finding that the findings and recommendations of the second respondent have no potential to adversely affect anyone’s

rights as they stand and that there was no merit in an argument that the applicants should have sought an order reviewing and setting

aside the findings and recommendations of the second respondent.

[54] The findings and recommendations of the second respondent constituted a decision of the second respondent and therefore constitute an administrative decision which the respondents in their application before Gura J. ought to have sought a review of same specifically to enable the Court to grant any such relief.

[55] The Court a quo ought to have applied the correct test and found as follows:-

a) The decision being impunged is that of the first respondent and not of the second respondent in respect of whom no relief was sought;

b) The power to investigate the claim and to make a determination vested in the second respondent and not the first respondent;

c) The parties to the dispute had the responsibility to place information before the second respondent for investigation and determination and not before the first respondent;

d) The means followed by the first respondent to reach the decision impugned involved a consideration of the findings and recommendation of the second respondent including the presentation made to the first respondent;

e) The first respondent applied the said findings and recommendations and treated such findings and recommendation of the second respondent as a specialist body with appropriate respect;

f) The first respondent did not fail to establish any facts or take into account any irrelevant consideration or ignored any relevant facts placed before him in taking the decision.

[56] The Court a quo substituted the decision of the second respondent when it was not empowered to do so, and in the circumstances where the respondents did not even attempt to allege that exceptional circumstances exist for the Court to do so.

E. THE ORDER

[57] Consequently the following order is made:-

57.1 The appeal is upheld;

57.2 The order of the Court a quo that the decision of the first respondent be reviewed and set aside on all aspects except on the elevation of the headman to that of Senior Traditional Leader is set aside and is replaced by the following order:-

“The application to review and set aside the first respondent’s decision is dismissed with costs”

57.3 The fifth, sixth and seventh respondents are ordered to pay the costs of this appeal, jointly and severally, the one paying the other to be absolved.

________________

A M KGOELE

JUDGE OF THE HIGH COURT

I agree

R D HENDRICKS

N. GUTTA

ATTORNEYS:

FOR THE APPELLANT : Kekana Ramorei Inc.

252 D.P. Kgotleng Street

Montshioa

2737

FOR THE RESPONDENT : State Attorney

1st Floor East Gallery

Mega City Complex

MMABATHO

2735