Case  CCT121/20
[2021] ZACC 43

Judgement Date: 12 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 Friday, 12 November 2021 at 12h00, the Constitutional Court handed down judgment in an application for leave to appeal against a judgment and order of the Supreme Court of Appeal, hearing an appeal from the Limpopo Division of the High Court, Thohoyandou. The matter related to the Traditional Leadership and Governance Framework Amendment Act 23 of 2009 (Framework Amendment Act), and the questions for determination were: whether the Supreme Court of Appeal correctly set aside the identification and recognition of the King of the VhaVenḓa community for non-compliance with the Framework Amendment Act; and, whether the Supreme Court of Appeal erred in staying the effect of its order pending the outcome of the review of the decisions pertaining to the identification and recognition of the King of the VhaVenḓa community, which issue was remitted to the High Court.

At the core of this matter lies a royal family dispute over the leadership of the VhaVenḓa community, in terms of the customary law and customs of the VhaVenḓa people. The first applicant, Mr Mphephu-Ramabulana, was identified as the suitable person to ascend to the Venḓa Throne, pursuant to the decision of the second applicant, the Royal Family Council (Identification Decision). Thereafter, the first applicant was recognised by the second respondent, the President of the Republic of South Africa, as the King of the VhaVenḓa community by notice in the Government Gazette (Recognition Decision). The first respondent, Ms Mphephu, is a Princess of the Royal Family, and asserts that she should be recognised as the sole Queen of the VhaVenḓa Community. The third and fourth respondents are the Minister of Cooperative Governance and Traditional Affairs and the Premier, Limpopo Province, respectively. The fifth and sixth respondents are the National House of Traditional Leaders and the Limpopo House of Traditional Leaders. The seventh respondent is the Commission on Traditional Leadership Disputes and Claims. The Ravhura Royal Kingship Council and Mr Amos Tshenuwani Mukapu Ravhura are the first and second intervening parties, respectively.

The genesis of this matter can be traced back to 2012, when Ms Mphephu, along with her uncle, Mr Mbulaheni Mphephu, launched review proceedings in the High Court seeking, in essence, to have the Royal Family Council’s Identification Decision, as well as the President’s subsequent Recognition Decision, declared unlawful, unconstitutional and invalid, and consequently reviewed and set aside. Ms Mphephu also sought an order declaring that, in terms of customary law, she is the sole Queen of VhaVenḓa, alternatively that her uncle, Mr Mphephu, is the sole King. By agreement, the parties raised 14 points in limine, the bulk of which were decided against Ms Mphephu, resulting in the dismissal of her application. Aggrieved by this outcome, Ms Mphephu launched an appeal. While the Supreme Court of Appeal upheld some of the High Court’s findings, it also overturned the judgment of the High Court on a number of the points in limine in substantial respects. Most importantly, the Supreme Court of Appeal held that the decisions of the State respondents, made in terms of the Traditional Leadership and Governance Framework Act 41 of 2003, were decisions of organs of State, and thus reviewable in terms of the Promotion of Administrative Justice Act (PAJA). Also importantly, the Supreme Court of Appeal held that, while the Royal Family Council is not an organ of State, its decisions in terms of the Framework Amendment Act initiate a process of identification, which leads to an exercise of public power. Thus, its decision was also susceptible to review in terms of PAJA.

The Supreme Court of Appeal reviewed and set aside both the Recognition Decision and the Identification Decision, but then remitted the matter to the High Court for further adjudication on the merits, which were not before it, by a different Judge. However, despite having reviewed and set aside both the Recognition Decision and the Identification Decision, the Supreme Court of Appeal held that it was premature to make a determination on a just and equitable remedy before the entire review was finalised. In the result, the Supreme Court of Appeal ordered that the effect of the review and setting aside of Mr Mphephu-Ramabulana’s recognition as the King of VhaVenḓa, and the withdrawal of his certificate of recognition, be stayed pending the final determination of these issues.

In the main application launched in the Constitutional Court, the applicants (Mr Mphephu-Ramabulana and the Mphephu-Ramabulana Royal Family Council) sought to overturn the decision of the Supreme Court of Appeal. The first respondent, Ms Mphephu, opposed the application and launched a conditional cross appeal in which she sought to uphold the Supreme Court of Appeal’s decisions in relation to the points in limine, as well as its decision to remit the remaining issues to the High Court. In terms of the unconditional cross-appeals, she further asked the Constitutional Court to set aside the Supreme Court of Appeal’s stay order and costs order.

The only parties who participated in the proceedings are the applicants and the first respondent. Two parties brought an application to intervene, which application was disposed of by the Court alongside the main application. The State respondents elected to abide by the decision of the Court. In a unanimous judgment, penned by Khampepe J, the Constitutional Court refused condonation in respect of the late filing of the main application. Accordingly, the Court dismissed the main application for leave to appeal and consequently held that the conditional cross-appeal and the intervention application did not arise for determination. However, the Court granted condonation and leave to appeal in the unconditional cross-appeal against the judgment and order of the Supreme Court of Appeal, as there were prospects of success apropos to Ms Mphephu’s two unconditional applications.

The Court then moved to decide the issue relating to the Supreme Court of Appeal’s stay order. The Constitutional Court noted that the consequences of a court finding that an administrative act is unlawful and unconstitutional, as the Supreme Court of Appeal did in respect of the Identification and Recognition Decisions, are dictated by the Constitution, in particular section 172(1)(a) which prescribes that an unlawful or unconstitutional administrative act must be declared invalid. As a result, the Constitutional Court rejected the contention made by the State respondents that, in making the stay order, the Supreme Court of Appeal exercised not the remedial power in section 172(1) of the Constitution, but the power to regulate its own processes, in terms of section 173. It was noted that section 172(1) sets out the parameters of what a court can and should do pursuant to a declaration that law or conduct, which includes administrative action, is unconstitutional. And, it is not open to a court to evade the consequences of a finding of unconstitutionality by purporting to exercise the power to regulate its own processes in section 173. Thus, it was found that, as a default position, a court must give full effect to its finding of invalidity and, where it exercises its remedial discretion not to do so in terms of section 172(1)(b), must carefully consider whether this is justified in the particular circumstances of the case. The Court also noted that the stay order neither afforded Ms Mphephu administrative justice nor vindicated the rule of law and, in fact, caused her prejudice. In the result, the Court found that the Supreme Court of Appeal’s stay order was not a just and equitable order as contemplated in section 172(1)(b) of the Constitution, and thus, it fell to be set aside.

The Court then considered the issue of costs and found that the costs order of the Supreme Court of Appeal had to be set aside. This was because Ms Mphephu, in bringing her application to the Constitutional Court, sought to vindicate her constitutional rights, and, as outlined above, was successful in doing so. The Court emphasised that the review and exercise of public power by courts always raises a constitutional issue. Furthermore, the Constitutional Court noted that the Supreme Court of Appeal applied rules of costs that ordinarily apply to regular litigants on appeal, despite having conducted a PAJA review of the administrative action of organs of State. Applying the Biowatch principle, the Court ordered the President to pay Ms Mphephu’s costs in the Supreme Court of Appeal and in the Constitutional Court.

The Full judgment  here