Case  CCT 282/22
[2024] ZACC 21

Ordered Date: 28 November 2023

Judgement Date: 03 October 2024

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 3 October 2024 at 10h00 the Constitutional Court handed down a judgment in an application for leave to appeal against the judgment and order of the Supreme Court of Appeal dated 14 September 2022. The matter concerned a dispute about who is the rightful iKumkani, or king, of amaMpondo aseQaukeni.

The first applicant is the President of the Republic of South Africa (the President). The second applicant is the Minister of Cooperative Governance and Traditional Affairs (the Minister). The third applicant is the Commission on Traditional Leadership Disputes and Claims (the Commission), and the fourth applicant is the Chairperson of the Commission. The first and second respondents are Wezizwe Feziwe Sigcau (Wezizwe) and Lombekiso Makhosatsini Masobhuza Sigcau (Lombekiso), the daughter and widow of the late uKumkani Mpondombini.

The dispute erupted in 1937 after uKumkani, Mandlonke died without leaving a male issue. This led to competing claims between two of the late uKumkani Mandlonke’s half -brothers, the late Mr Botha and the late Mr Nelson Sigcau. The dispute was statutorily settled when Mr Botha Sigcau was recognised as the “Paramount Chief” of the Eastern Pondoland in terms of the Black Administration Act. The use of the term “statutorily settled”, is because the dispute was not settled customarily. The dispute re-erupted when Mr Botha Sigcau died, this time between his son, Mr Mpondombini and Mr Zwelidumile Sigcau, the son of his brother Mr Nelson Sigcau. UKumkani Mpondombini won this statutory battle and was appointed as the Paramount Chief which meant that he succeeded his father (Botha). Decades after the death of uKumkani Mandlonke, the dispute flared up again. This time between the wife and daughter of uKumkani Mpondombini against the decision of the applicants in this matter to recognise Mr Zanozuko, the son of Mr Zwelidumile as the rightful uKumkani of amaMpondo.

In April 2006, Mr Zanozuko lodged a claim with the Commission that he was the one entitled to be the king of amaMpondo aseQaukeni. Earlier, in 2008, the Commission made a decision that the paramountcy of amaMpondo aseQaukeni constituted a single kingship. UKumkani Mpondombini contested Mr Zanozuko’s claim. He maintained that he was entitled to occupy the position and to be the king of amaMpondo aseQaukeni. The Commission held public hearings into the dispute. In January 2010, the Commission made a decision that Mr Zanozuko was the one entitled to be the king of amaMpondo aseQaukeni. Thereafter the President published the recognition of Mr Zanozuko as king of amaMpondo. It is this decision that now lies at the heart of this matter.

The late Mr Mpondombini launched an application in the High Court, seeking relief to have the decisions of the Commission and that of the President reviewed and set aside. Mr Mpondombini died on 27 March 2013, and was substituted by Mrs Wesizwe and Mrs Lombekiso. The High Court held that the Commission applied the customary law and custom of the traditional leadership succession of amaMpondo which dictates that the son of the Right-Hand wife does not succeed the king. In that regard, the court held that it was unable to find any evidence that the decision of the Commission was either irrational, unlawful, unreasonable or procedurally unfair and that it should be set aside.

The High Court based its findings on the Commission’s report which outlined the application of the customary rules of succession between the male children in the Great House and those in the Right-Hand House. The High Court relied on the Commission’s findings and held that the late Mr Botha was a son of the Right-Hand Wife while the late Mr Nelson was a son of iQadi of the Right-Hand Wife. In that instance, based on customary law, Mr Nelson had to succeed ahead of Botha. The High Court held that Mr Nelson’s claim was further strengthened by the custom of ukungena that occurred between himself and the widow of the deceased Mandlonke, being Magingqi. The Court also considered the respondents’ contention that the Commission failed to apply the customary living law of amaMpondo by failing to consult the people of amaMpondo. It held that there was no evidence placed before the Commission that, in spite of section 25(3)(a), that it had to consult the people of amaMpondo.

Mrs Wesizwe and Mrs Lombekiso approached the Supreme Court of Appeal. The Supreme Court of Appeal upheld the appeal and set aside the order of the High Court. They further set aside the Commission’s 2010 determination, as well as the President’s report and notice on the appointment of Mr Zanozuko as king. In its reasoning, the Supreme Court of Appeal held that the Commission failed to apply the correct customary law at the time of the dispute. It held that the Commission erred in confining itself to only the evidence led by both disputants to the throne and in failing to incorporate community participation.

The Supreme Court of Appeal held that the Commission and High Court erred in finding that Mr Botha could never succeed his father because he is the son of the Right-Hand house. The Supreme Court of Appeal determined that it was possible for Mr Botha to ascend the throne and that Right-Hand house ascensions were not unheard of in amaMpondo custom.

Before the Court, the applicants submitted that this Court's findings in Sigcau I and Sigcau II, raise constitutional matters within the meaning in section 167(3)(b)(i) of the Constitution. In this regard, the applicants rely on sections 211 and 212 of the Constitution.

The applicants argued that the Supreme Court of Appeal was incorrect in two respects. Firstly, it deviated from its precedent that dictates deference to decisions or findings of a commission, especially one that is an expert body, such as the one in this matter. Secondly, the applicants contended that, by re-determining these findings of the Commission, the Supreme Court of Appeal conflated the nature of a review and an appeal.

The respondents contended that this matter should be considered using a standard that considers acceptability, fitness to govern and popularity. They argued that the Commission committed errors of law in that it did not conduct an all-encompassing investigation into the living customary law of amaMpondo. In addition, the respondents contended that the Commission adopted an adversarial, trial-like fact-finding process and did not, on its own, investigate the issues before it. They argued that it confined its task to the consideration of the evidence and arguments presented to it by both claimants to the throne. As such, the respondents submitted that the Commission committed errors of fact on who was the rightful heir of amaMpondo.

The respondents contended that the Commission failed in its duty to investigate and apply the relevant customary law at the relevant times to the dispute. They argued that by applying a strict genealogical approach, the Commission failed to identify the customs governing the amaMpondo including the central role of community preference and fitness to govern in choosing between viable candidates. The respondents contended that the Commission ignored evidence relating to Mr Mpodombini’s support in 2008, and failed to consider whether amaMpondo supported the appointment of Mr Zanozuko and if he was fit to govern. Lastly, the respondents argued that in crafting the remedy, the Supreme Court of Appeal in considering the respondents remedy, exercised discretion in a true sense.

In a unanimous judgment penned by Tshiqi J, the Court found that this matter engaged the Court’s constitutional jurisdiction and raised an arguable point of law of general public importance in so far as it invoked the provisions of section 211 of the Constitution and customary law, thus raising issues of great importance on traditional leadership, issues that transcend beyond the parties before this Court. The Court found that it is in the interests of justice to grant leave to appeal. The Court held that, in dealing with the submissions from the disputants, the Commission examined in detail, the customary genealogical rules regarding traditional leadership, and to a certain extent, popularity. The Court held that the Commission also considered the impact of a commission established by the colonial Government in the Transkei (1938 Commission), which made some determinations regarding the character of Nelson as a potential iKumkani. The Commission found that such determinations from the 1938 Commission were not in line with custom. Therefore, the Court held that although the Commission did not deal to any specific extent with fitness to govern, it is safe to assume that fitness to govern is reflected in popularity, and the Commission was correct in its refusal to place reliance on an assessment of fitness to govern by white colonial administrators whose preference was for pliant traditional leaders.

The Court held that it is not clear why the Supreme Court of Appeal rejected the findings of the Commission that firstly, Botha, as the son of the Right-Hand House, could never succeed as iKumkani and, secondly, that amaMpondo resorted to ukungena to raise a seed for Mandlonke’s house. It held that the Supreme Court of Appeal failed to show how these findings were out of kilter with the evidence presented to the Commission and the Commission’s own research. The Court held that the Supreme Court of Appeal’s failure was primarily due to a lack of acknowledgment that the Commission was an expert body in its own right like another administrative body. The Court reasoned that the Supreme Court of Appeal overlooked the fact that the Commission comprehensively engaged in the collection and evaluation of evidence from various sources and conducted its own research.

The Court held that the Supreme Court of Appeal erred when it ventured beyond the proper scope of its judicial review powers by suggesting that the Commission should have considered a broader scope of evidence to obtain a more comprehensive view of living customary law of amaMpondo.

The Court held that the Supreme Court of Appeal’s suggestion that the Commission should have held an imbizo or community gathering goes against the assertion by the Acting Chairperson who states that during the first phase, that process was embarked upon and that during the second phase, the Commission relied on all the evidence at the second hearings and supplemented this with evidence already at its own disposal and further research. The Court held that this begs the following questions: was an imbizo of amaMpondo the only method to be adopted by the Commission and did it have to do it every time it was tasked to conduct an investigation? Additionally, was there a method prescribed for gathering evidence during the investigation? The answer is no. This was a matter to be determined by the Commission based on its expertise.

The Court held that the rightful successor to uKumkani Mandlonke was never determined customarily and that the dispute regarding kingship in terms of customary law was not resolved. Therefore, the events that occurred that gave rise to the dispute or claim occurred way back in 1937 when uKumkani Mandlonke died without leaving an heir to the throne. The Court held that the Commission carefully analysed the evidence relating to the customary law practised by amaMpondo at the time and how it was applied in order to try and resolve the dispute regarding the successor to the kingship after Mandlonke died without leaving an heir. It held that the Commission’s findings were based on that analysis. The Court reasoned that apart from genealogy, the Commission correctly and sufficiently analysed how amaMpondo resorted to ukungena and isifingo in order to raise seed in Mandlonke’s house. The Court held that the Commission correctly concluded that Zanozuko was a descendant of those customs.

The Court held that regarding the process followed by the Commission, there is no complaint that it was unfair and there were no objections raised at the time until the process was finalised. The Court reasoned that there was no prescribed procedure with which the Commission was required to comply in conducting the investigation. It held that there is also no evidence that the Commission considered irrelevant factors or did not consider factors it had to consider. The Court further held that there is no justification for second-guessing the assertion by the Acting Chairperson that some of the research collected during the first phase was used, as well as the expertise of the panel members and their own research. It held that it appears through the Commission’s reference to the Appellate Division and Govan Mbeki and Poto’s books that the Commission did not confine itself to the evidence of the witnesses.

The Court found no basis to review the findings of the Commission. It held that the application for review has no merit.

The Court held that even from a practical point of view, it is impossible to determine who the “royal family” is without first determining which line of descent, that of Nelson or that of Botha, produces the true heir. The Court held that the review by the respondents ultimately fails and Zanozuko died as the king of amaMpondo.

The Full judgment  here