Case  CCT174/20
[2021] ZACC 38

Hearing Date: 13 May 2020

Judgement Date: 05 November 2021

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 4 November at 10h00, the Constitutional Court handed down judgment in an appeal against the judgment and order of the High Court of South Africa, Limpopo Division, Polokwane (High Court), which dismissed an application to review and set aside the Premier of Limpopo’s decision to remove the applicant, Mr Kgabagare David Langa, as the senior traditional leader of the Mapela Traditional Community and recognise the fifth respondent, Mr Hans Masebe Langa, in his stead.

The appointment and removal of traditional leaders in Limpopo Province is governed by Traditional Leadership and Governance Framework Act 41 of 2003 (Framework Act) and the Limpopo Traditional Leadership and Institutions Act 6 of 2005 (Limpopo Act). The Limpopo Act is subject to the Framework Act. The Framework Act makes provision for the establishment of provincial committees to deal with disputes and claims relating to traditional leadership. Both the Ralushai Commission (third respondent) and the Kgatla Commission (fourth respondent) were delegated the authority to investigate and make recommendations on traditional leadership disputes in the Mapela Traditional Community. In respect of the dispute between the applicant and fifth respondent, both Commissions recommended the recognition of the fifth respondent as senior traditional leader on the basis that his appointment would restore the bloodline of Kgoshi Alfred Sedibu Langa. The Ralushai Commission published its report in 2017 and the Kgatla Commission published its report in 2013.

On 8 August 2017, the Premier published a notice in the Provincial Gazette stating that he recognised the fifth respondent “as senior traditional leader in terms of section 12(1)(b)(i) of the [Limpopo Act]” (recognition notice). On 16 August 2017, the Premier published a further notice stating that “in terms of section 13(3)(b) of the [Limpopo Act]” the applicant “is removed from office as senior traditional leader” (withdrawal notice).

In review proceedings before the High Court, the applicant contended that the Premier’s decisions to withdraw his certificate of recognition and to recognise the fifth respondent were ultra vires sections 12, 13 and 30 of the Limpopo Act and that they amounted to procedurally unfair administrative action in terms of the Promotion of Administrative Justice Act 3 of 2000. The High Court rejected each of these grounds and dismissed the review.

Before the Constitutional Court, the applicant sought a review of the Premier’s withdrawal and recognition on the same grounds advanced in the High Court. The applicant also sought a review of the decisions on the basis that the Kgatla Commission was not properly constituted, that it had not referred its recommendation to the Premier within two weeks of the recommendation being made (in contravention of section 26 of the Framework Act) and that the Commission lacked jurisdiction to resolve the present dispute.

In a unanimous judgment penned by Theron J and concurred in by Khampepe ADCJ, Jafta J, Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Tlaletsi AJ and Tshiqi J, the Constitutional Court upheld the appeal and substituted the High Court’s order with an order setting aside the withdrawal notice and recognition notice with prospective effect.

The Court concluded that the withdrawal notice was unlawful because in issuing the notice the Premier had purported to act in terms of section 13(3)(b) of the Limpopo Act, which does not confer the power to remove a senior traditional leader on the basis of wrongful appointment. It reasoned that the Premier’s powers under section 13(3) are triggered only once she is informed of the royal family’s decision to remove a senior traditional leader on any of the grounds in section 13(1) other than wrongful appointment and recognition. It was common cause that the basis for the withdrawal of the applicant’s certificate of recognition was “wrongful appointment and recognition” and thus it followed that the Premier’s section 13(3) powers were not triggered.

The Court then addressed the applicant’s reliance on the Constitutional Court’s remark in Tshivhulana Royal Family v Netshivhulana that “[t]he Framework Act does not prescribe a procedure for the removal of a headman on the ground of wrongful appointment or recognition”. The Court explained that apart from being obiter dictum (a comment said in passing), when read in context, it was clear that the Court’s finding concerned only the Premier’s powers to remove senior traditional leaders at the instance of a royal family in terms of section 12(2) of the Framework Act. Crucially, the dispute in Tshivhulana did not concern a removal by the Premier at the instance of a commission and the Court did not consider the possibility of removal on the ground of wrongful appointment or recognition pursuant to a recommendation made by a commission in terms of section 26 of the Framework Act.

The Court noted that in this matter, the Premier could have derived the power to implement the recommendations of the Kgatla Commission from section 26 of the Framework Act, read together with section 13(1)(c) (which authorise removal of a senior traditional leader on the ground of wrongful appointment) and section 30 of the Limpopo Act, (which empowers the Premier to implement the removal). By purporting to issue the withdrawal notice in terms of section 13(3)(b) of the Limpopo Act, the Premier infringed the constitutional principle of legality. The withdrawal notice was therefore unlawful and stood to be set aside. The Court concluded further that if the withdrawal notice is set aside, it could not uphold the recognition notice, since there is nothing in the Limpopo Act which suggested that two people can hold the position of senior traditional leader at the same time. Finally, the Court concluded that retrospective orders setting aside the notices would risk disruption to the orderly and effective administration of the Mapela Traditional Community. In view of the fact that the fifth respondent had been inaugurated in March 2018, as well as the fact that this was not a case of egregious illegality, the Court was satisfied that prospective orders setting aside the notices would, in the circumstances, be just and equitable relief.

As for the other grounds of review aimed at impugning the recommendations, constitution and jurisdiction of the Kgatla Commission, the Court concluded that the applicant had abandoned his attack on the findings of both Commissions in the High Court and allowing the applicant to pursue these grounds would be unfairly prejudicial to the respondents.

This led the Constitutional Court to uphold the appeal and order the Premier to pay the applicant’s costs.

The Full judgment  here