Case CCT 167/17
[2018] ZACC 28
Hearing Date: 20 February 2018
Judgement Date: 11 September 2018
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday 11 September 2018, the Constitutional Court handed down judgment in an application for leave to appeal against a decision of the Gauteng Division of the High Court of South Africa, Pretoria (High Court), regarding a dispute about the steps that the President was obliged to take in terms of the Traditional Leadership and Governance Framework Act 41 of 2003 (unamended Act) in implementing a decision of the Commission on Traditional Dispute and Claims (Commission). The decision of the Commission was about a dispute over a traditional leadership position relating to the position of king or queen of amaMpondo aseQaukeni. The application was brought by Ms Wezizwe Feziwe Sigcau against the Minister of Cooperative Governance and Traditional Affairs and the President of the Republic of South Africa. The original dispute was about who was entitled to be the king or queen of amaMpondo aseQaukeni. The application before the Constitutional Court was incidental to the original dispute. The question to be determined was what the steps were that the President was required to take in order to immediately implement the decision of the Commission concerning the original dispute.
On the question of who was entitled to be the king or queen of amaMpondo aseQaukeni, the Commission decided that Zanozuko Sigcau was entitled to be the king and rejected Mpondombini Sigcau’s contention. The Commission communicated its decision to the President in terms of section 26(2)(a) of the unamended Act. Section 26(2)(a) of the unamended Act provided that the Commission had to convey its decision to the President within two weeks of taking it, “for immediate implementation in accordance with section 9 or 10 where the position of a king or queen is affected by such a decision...”. Section 9 provided that whenever the position of a king or queen was to be filled, the royal family should identify the person who, in terms of customary law, was entitled to be the king or queen and notify the Premier of the Province of such name and give the name to the President and the Minister of Cooperative Governance and Traditional Affairs and the President would be obliged to recognise that person as king or queen unless there were allegations that customary law had not been complied with in identifying that person. In the latter event, the President would be required to act in terms of section 9(3) and could refer the matter to the National House of Traditional Leaders, or refuse to issue a certificate of recognition, or refer the matter back to the royal family for reconsideration and resolution. After receipt by the President of the Commission’s decision, he caused a notice to be published in the Government Gazette and a certificate to be issued recognising Zanozuko as the king of amaMpondo aseQaukeni. This decision of the President was subsequently set aside by the Constitutional Court in Sigcau 1 but the Commission’s decision was not set aside. The basis for setting aside the President’s notice and certificate of recognition was that the President had acted under a wrong Act, namely the amended Act instead of acting under the unamended Act.
After the Constitutional Court’s judgment in Sigcau 1, the President wanted to implement the decision of the Commission. A dispute arose between the President, on the one hand, and Wezizwe Feziwe Sigcau and LMM Sigcau on the other, about what the steps the President was required to take to implement the Commission’s decision. Wezizwe Sigcau and LMM Sigcau contended that the President took the view that the whole section 9 process had to be followed to implement that decision, whereas the President took the view that only the steps of publishing the section 9(2)(a) notice in the Government Gazette and issuing the section 9(2)(b) certificate of recognition in favour of the person decided upon by the Commission as the king or queen needed to be taken. In a review application brought by the President in the High Court to clarify what his obligations were in this regard, the High Court held that all that the President was required to do was to take the two steps mentioned above. Wezizwe Sigcau and LMM Sigcau then brought an application for leave to appeal against that decision and argued that the whole section 9 process should be followed.
In a majority judgment written by Zondo DCJ (with Cachalia AJ, Dlodlo AJ, Goliath AJ, Jafta J, Khampepe J, Madlanga J and Petse AJ concurring) the Deputy Chief Justice held that the phrase “for immediate implementation in accordance with section 9 or 10 where the position of a king or queen is affected by such a decision” in section 26(2)(a) meant that the President had to put the Commission’s decision into effect or put it into operation in accordance with section 9 or 10 where the position of a king or queen is affected by such a decision, in so far as may be applicable. He said that the way to do that in the present case was for the President to publish the section 9(2)(a) notice in the Government Gazette and issue the certificate of recognition in favour of Zanozuko as king of amaMpondo aseQaukeni.
The Deputy Chief Justice held that, if section 26(2)(a) meant that the President had to follow the whole section 9 process the President would be failing immediately to put the Commission’s decision into effect or into operation as required by section 26(2)(a) of the unamended Act. He held that it could not be that section 26(2)(a) required that the whole section 9 process be followed where there was already a decision of the Commission on who was entitled to be the king or queen in terms of customary law. He said that, in part, this was so because just as the royal family was required to base its identification of the person on customary law, the Commission, too, was required to base its decision on customary law. Zondo DCJ further said that he saw no reason why, in a case where the Commission had already made a decision based on customary law on an issue, it would be necessary for the royal family to effectively repeat the same exercise when the decision of the Commission had not been set aside. To read section 26(2)(a) to mean that the whole section 9 process had to followed could result in there being two conflicting decisions on who is entitled to be the king or queen each of which the President would be obliged to implement. The one would be the royal family’s decision which section 9 said the President was obliged to give effect to and the other would be that of the Commission which the President was also obliged to implement in terms of section 26(2)(a) of the unamended Act. In the end Zondo DCJ concluded that leave to appeal should be granted, the appeal should be dismissed and no order as to costs should be made.
In a dissenting judgment by Froneman J, Froneman J would have granted leave and upheld the appeal. Froneman J held that the text of the legislation is reasonably capable of a different reading than the one adopted by the majority judgment. Froneman J reasoned that the Constitution seeks to redress the previous distortions of customary law through sections 211 and 212 by elevating the status of customary law to a system that works alongside the common law and international law, subject only to the Constitution. Accordingly, Froneman J concluded that an interpretation of section 26(2)(a) of the unamended Act to the effect that the President must comply with the entirety of section 9 and 10 is textually sound and it gives due and proper recognition to customary law communities to develop customary law in their own way in accordance with the constitutional values.
In the result the order of the Court was that leave to appeal is granted, the appeal was dismissed and there was no order as to costs.
The Full judgment here.