Customary law interpretation: Commission – finality of decision

Customary law — Traditional Leadership and Governance Framework Act — Commission on Traditional Leadership Disputes — statutory interpretation — the steps the President is required to take in order to immediately implement the decision of the Commission on Traditional Leadership Disputes

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.”

Note: Footnotes omitted and emphasis added

ZONDO DCJ (Cachalia AJ, Dlodlo AJ, Goliath AJ, Jafta J, Khampepe J, Madlanga J and Petse AJ concurring):

Introduction

[1] Before the Traditional Leadership and Governance Framework Act was amended by the Traditional Leadership and Governance Framework Amendment Act, it created the Commission on Traditional Disputes and Claims (Commission). The Commission’s functions included deciding any traditional leadership dispute or claim arising out of any province in terms of section 25(2) of the unamended Act. Disputes or claims under section 25(2) included a dispute or claim relating to “a traditional leadership position where the title or right of the incumbent is contested”. This appears in section 25(2)(a)(ii). Section 25(2)(a) provided that “[t]he Commission has authority to investigate, either on request or of its own accord” a number of disputes or claims which include a dispute concerning a traditional leadership position where the title or right of the incumbent is contested. Section 25(4) provided: “The Commission has authority to investigate all traditional leadership claims and disputes arising from 1 September 1927, subject to subsection (2)(a)(iv)”. Section 26(2)(a) of the unamended Act provided that “[a] decision of the Commission must, within two weeks of the decision being taken, be conveyed to the President for immediate implementation in accordance with section 9 or 10 where the position of a king or queen is affected by such a decision”.

[2] In this matter, if we grant the applicants leave to appeal, we will be required to determine the steps that the President was obliged to take under the unamended Act to ensure an “immediate implementation in accordance with section 9 or 10” of a decision of the Commission concerning a dispute or claim relating to a traditional leadership position affecting the position of a king or queen.

The question will be: was the President obliged to take all the steps in section 9 or 10 or was his obligation no more than to publish in the Government Gazette the notice announcing the decision of the Commission in terms of section 9(2)(a) and to issue a certificate of recognition in favour of the person identified by the Commission as entitled to be king or queen? The applicants contend that the President was obliged to follow the whole process in terms of section 9 or 10 whereas the President contends that all he was required to do was to publish the notice contemplated in section 9(2)(a) and to issue the certificate of recognition in terms of section 9(2)(b).

Background

[3] In 2008 the Commission made a decision that the paramountcy of amaMpondo aseQaukeni constituted a kingship. This meant that that paramountcy was entitled to have a king. At that time Paramount Chief Mpondombini Justice Sigcau occupied the position of Paramount Chief of amaMpondo aseQaukeni in Lusikisiki, Eastern Cape.

[4] In April 2006 Mr Zanozuko Sigcau lodged with the Commission a claim that he was the one entitled to be the king of amaMpondo aseQaukeni. That meant that he was challenging the title of Paramount Chief Mpondombini Justice Sigcau and wanted to be the king of amaMpondo aseQaukeni. Since both disputants bear the same surname, I shall refer to the one as Zanozuko and the other as Mpondombini. No disrespect is meant to either of them. I do so purely for convenience and to ensure a distinction between them. Mpondombini contested Zanozuko’s claim. He maintained that he was entitled to occupy the position he was occupying and to be the king of amaMpondo aseQaukeni. The Commission held public hearings into the dispute. Each side was allowed to lead evidence and to cross-examine the witnesses of the other. Mpondombini was represented by counsel. Zanozuko had no legal representation. In January 2010 the Commission made a decision to the effect that Zanozuko was the one entitled to be the king of amaMpondo aseQaukeni. That decision was conveyed to the President in terms of section 26(2)(a) of the unamended Act.

[5] The President sought to implement the decision of the Commission by issuing a notice and a certain certificate under the amended Act. The notice was a notice of recognition published in the Government Gazette. It recognised Zanozuko as the king of amaMpondo aseQaukeni. The certificate was a certificate of recognition in terms of section 9(2)(b). This led to a legal challenge in Sigcau 1 that reached this Court in 2013. That challenge related to, among others, the questions of whether the notice and certificate that had been issued and published by the President to implement the decision of the Commission were valid and whether the decision of the Commission fell to be reviewed and set aside. The legal challenge took the form of a review application that was brought by Mpondombini in the North Gauteng High Court, Pretoria (High Court) to have the notice, the certificate and the Commission’s decision reviewed and set aside.

[6] The High Court dismissed that review application. On appeal before this Court, this Court limited its decision to the notice and certificate that had been issued by the President. This Court held that the notice and certificate were invalid, upheld Mpondombini’s appeal, set aside the decision of the High Court and set aside the notice and certificate. The basis for that outcome was that the President had acted under the amended Act when he should have acted under the unamended Act.

[7] A month or so before this Court handed down its judgment, Mpondombini passed away. We were later to explain in Nxumalo that the effect of this Court’s decision in Sigcau 1 was in part that the Commission’s decision stood as it had not been set aside and that it was, therefore, still pending in the High Court. It would seem that, since the handing down of this Court’s judgment in Sigcau 1, nothing has been done by anybody to pursue the application to review and set aside the Commission’s decision. That is assuming that, despite Mpondombini’s passing on, somebody would have locus standi (standing) to pursue the application to have the Commission’s decision reviewed and set aside. A period of five years has lapsed since this Court’s decision in Sigcau 1. This case must be decided on the basis that the decision of the Commission that Zanozuko is entitled to be the king stands.

[8] Subsequent to the judgment of this Court in Sigcau 1, Mpondombini’s family held a meeting on the basis that they are the royal family for amaMpondo aseQaukeni and they nominated Wezizwe Feziwe Sigcau, a daughter of Mpondombini, to succeed her father as the queen. The nomination was conveyed to the Premier of the Eastern Cape and the President. The President was then called upon to recognise Wezizwe as the queen of amaMpondo aseQaukeni and issue a certificate of recognition in her favour.

[9] The President did not see his way clear to recognising Wezizwe as he believed that he was required to implement the earlier decision of the Commission. He thought that all that the decision entailed was that he should publish the requisite notice of Zanazuko’s recognition in the Government Gazette and issue a certificate of recognition in favour of Zanozuko under the unamended Act. Wezizwe and her mother, the second applicant, disagreed with this view.

High Court

[10] The President brought an application in the High Court of South Africa, Gauteng Division, Pretoria for an order clarifying his legal obligations once the decision of the Commission had been conveyed to him. The High Court upheld the President’s interpretation. It, accordingly, granted an order to the effect that all the President was required to do was to publish the notice and issue the certificate contemplated under section 9(2)(a) and (b) of the unamended Act.

Supreme Court of Appeal

[11] An appeal to the Supreme Court of Appeal failed. The Supreme Court of Appeal also adopted the interpretation favoured by the President and upheld the decision of the High Court.

In this Court

Jurisdiction

[12] With regard to jurisdiction, this Court has jurisdiction in this matter for the same reasons upon which this Court relied in Sigcau 1 to support its conclusion that it had jurisdiction in respect of that matter. In this case, this Court also has jurisdiction because the matter raises an arguable point of law of general public importance which ought to be considered by this Court. That point is: what steps was the President required to take under the unamended Act, in order to immediately implement the decision of the Commission that Zanozuko was the person entitled to be the king of amaMpondo aseQaukeni?

Leave to appeal

[13] The applicants have applied to this Court for leave to appeal against the decision of the Supreme Court of Appeal. The President does not oppose the application. The matter raises an issue of great importance on traditional leadership. The issue goes beyond the parties before the Court. The prospects of success are reasonable. In the circumstances, leave to appeal should be granted.

Appeal

[14] The applicants contend that, after the Commission had made its decision, the President was required to allow the whole section 9 process to take place and effect a removal of Mpondombini as king after the Commission had conveyed its decision to him. The President disputes this contention and argues that all that he was required to do was to publish the section 9(2)(a) notice in the Government Gazette announcing the Commission’s decision and issue a certificate of recognition in favour of Zanozuko as king in terms of section 9(2)(b).

[15] In this matter the Commission made a decision on who should be the king of amaMpondo aseQaukeni and conveyed it to the President. Its decision was that Zanozuko, and not Mpondombini, was entitled to be the king. The Commission concluded that Mpondombini was not, in terms of customary law and the customs of the community, entitled to be the king.

[16] Section 26(2)(a) of the unamended Act reads as follows:

“(2) A decision of the Commission must, within two weeks of the decision being taken, be conveyed to—
(a) the President 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 10 governs the requirements and process for the removal of a king or queen from office. In the present case it is not necessary to consider section 10 because it is common cause that the position of king or queen of amaMpondo aseQaukeni is vacant and this means that there is no king or queen who needs to be removed. However, it is necessary to consider the provisions of section 9.

[17] The heading to section 9 is “Recognition of kings and queens”. Section 9(1)(a) reads:

“(1) Whenever the position of a king or a queen is to be filled, the following process must be followed:
(a) The royal family must, within a reasonable time after the need arises for the position of a king or a queen to be filled, and with due regard to applicable customary law—
(i) identify a person who qualifies in terms of customary law to assume the position of a king or a queen, as the case may be, after taking into account whether any of the grounds referred to in section 10(1)(a), (b) and (d) apply to that person; and
(ii) through the relevant customary structure—
(aa) inform the President, the Premier of the province concerned and the Minister, of the particulars of the person so identified to fill the position of a king or a queen;
(bb) provide the President with the reasons for the identification of that person as a king or a queen; and
(cc) give written confirmation to the President that the Premier of the province concerned and the Minister have been informed accordingly.”

[18] Section 9(1)(b) then reads:

“The President must, subject to subsection (3), recognise a person so identified in terms of paragraph (a)(i) as king or queen, taking into account—
(i) the need to establish uniformity in the Republic in respect of the status afforded to a king or queen;
(ii) whether a recognised kingship exist—
(aa) that comprises the areas of jurisdiction of a substantial number of senior traditional leaders that fall under the authority of such king or queen;
(bb) in terms of which the king or queen is regarded and recognised in terms of customary law and customs as a traditional leader of higher status than the senior traditional leaders referred to in subparagraph (aa); and
(cc) where the king or queen has a customary structure to represent the traditional councils and senior traditional leaders that fall under the authority of the king or queen; and
(iii) the functions that will be performed by the king or queen.”

[19] It seems appropriate to also quote section 9(2). It reads:

“(2) The recognition of a person as a king or a queen in terms of subsection (1)(b) must be done by way of—
(a) a notice in the [Government] Gazette recognising the person identified as king or queen; and
(b) the issuing of a certificate of recognition to the identified person.”

It is also appropriate to quote section 9(3) and (4) because, although section 9(1)(b) requires the President to recognise as a king or a queen the person identified by the royal family, it subjects such recognition to section 9(3). Subsections (3) and (4) read:

“(3) Where there is evidence or an allegation that the identification of a person referred to in subsection (1) was not done in terms of customary law, customs or processes, the President—
(a) may refer the matter to the National House of Traditional Leaders for its recommendation; or
(b) may refuse to issue a certificate of recognition; and
(c) must refer the matter back to the royal family for reconsideration and resolution where the certificate of recognition has been refused.
(4) Where the matter that has been referred back to the royal family for reconsideration and resolution in terms of subsection (3) has been reconsidered and resolved, the President must recognise the person identified by the royal family if the President is satisfied that the reconsideration and resolution by the royal family has been done in accordance with customary law.”

[20] Section 26(2)(a) provides that the Commission conveys its decision to the President for “immediate implementation in accordance with section 9 or 10 where the position of king or queen is affected by such a decision”. The dispute between the parties now is what it is that the President must do to ensure the “immediate implementation” of the Commission’s decision in accordance with section 9 or 10 when the position of a king or queen is affected. This requires that we determine the meaning of the phrase “immediate implementation in accordance with section 9 or 10 where the position of a king or queen is affected by such a decision”.

[21] We must interpret the phrase purposively, paying due regard to the language of the statute, its objects, the purpose of section 26 and the context in which the phrase is used. The unamended Act’s objects included the provision for:

“the recognition of traditional communities; the establishment and recognition of traditional councils; a statutory framework for leadership positions within the institution of traditional leadership; recognition of traditional leaders and the removal from office of traditional leaders; houses of traditional leaders; the functions and roles of traditional leaders; dispute resolution and the establishment of the Commission on Traditional Leadership Disputes and Claims.”

[22] The preamble to the unamended Act reflects the following in part:

“Whereas the State, in accordance with the Constitution, seeks—
• to set out a national framework and norms and standards that will define the place and role of traditional leaderships within the new system of democratic governance;
• to transform the institution in line with constitutional imperatives; and
• to restore the integrity and legitimacy of the institution of traditional leadership in line with customary law and practices;
…
And whereas—
• the State must respect, protect and promote the institution of traditional leadership in accordance with the dictates of democracy in South Africa;
• the State recognises the need to provide appropriate support and capacity building to the institution of traditional leadership;
• the institution of traditional leadership must be transformed to be in harmony with the Constitution and the Bill of Rights so that—
 democratic governance and the values of an open and democratic society may be promoted; and
 gender equality within the institution of traditional leadership may progressively be advanced.”

[23] The unamended Act had seven chapters. Chapter 1 dealt with the “interpretation and application”. Chapter 2 dealt with the recognition of traditional communities, establishment and recognition of traditional councils, functions of traditional councils, partnerships between traditional councils and municipalities, support to traditional councils and withdrawal of recognition of traditional communities. Chapter 3 dealt with the recognition and removal of different traditional leaders, including regents, deputy traditional leaders and persons acting as traditional leaders. Chapter 4 dealt with houses of traditional leaders. Chapter 5 dealt with the roles and functions of traditional leadership. Chapter 6 was devoted to dispute resolution and the Commission on Traditional Leadership Disputes and Claims. Chapter 7 contained general provisions.

[24] Chapter 6, which dealt with dispute resolution and the Commission, comprises sections 21 to 26. This means that the phrase which we are called upon to interpret, namely, “for immediate implementation in accordance with section 9 or 10 where the position of a king or queen is affected” in section 26(2)(a) appears in the chapter that deals with dispute resolution.

[25] The Cambridge International Dictionary of English reflects the meaning of the verb “implement” as being “to put (a plan or system) into operation.” The South African Concise Oxford Dictionary gives the verb “to implement” the meaning “to put into effect”. If one accepts that this is the correct meaning of the verb “to implement” and that the noun “implementation” in section 26(2)(a) means the act of putting into effect or of putting into operation, then 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 that provision means that the President must 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.

[26] If the President were to wait for a process in terms of which the royal family would identify a person who they think is entitled to be the king or queen in circumstances where the Commission has already identified and decided upon such a person, the President would be failing immediately to put the Commission’s decision into effect or into operation as required by section 26(2)(a). In this regard I point out that the dispute resolution process in section 9(3) which would have to be followed if, after the royal family had identified the person to assume the position of king, there was a dispute, may involve the referral of the matter to the House of Traditional Leaders. That process could take long before there was finality. If the President were to wait for the invocation of the entire section 9 process, he would be failing in his section 26(2)(a) duty immediately to implement the Commission’s decision. This is so because the invocation of the whole process may lead to the identification by the royal family of a different person from the one decided upon by the Commission.

[27] Invoking the entire section 9 process is inconsistent with the Commission’s decision. That is so because what the royal family is enjoined to do in terms of section 9(1) is to identify the person who is entitled in terms of customary law to be the king or queen and to be recognised as such under section 9(2)(a) and to be issued with a certificate of recognition in terms of section 9(2)(b) by the President. Likewise, the purpose of the Commission’s process under sections 25 and 26 is precisely the same. In terms of this process the Commission also identifies and decides upon the person entitled to be the king or queen in terms of customary law. It is difficult to understand the proposition that, where the Commission has already identified and decided upon such a person in respect of a kingship or queenship and its decision has not been set aside, the royal family may or must open the section 9(1) process to identify the person entitled to be king or queen. One would understand a proposition that the royal family should first invoke the section 9(1) process and identify the person entitled to be the king or queen and that, if, thereafter, there arises a dispute, the Commission should then come in and resolve the dispute. However, to say that, after the Commission has resolved the dispute, the royal family must still invoke the whole section 9 process and identify the person to be the king is difficult to understand.

[28] Section 25 dealt with the functions of the Commission. The heading of the section was “Functions of Commission.” Section 25(1) provided that the Commission operated nationally and had “authority to decide on any traditional leadership dispute and claim contemplated in subsection (2) and arising in any province.” Subsection (2)(a) listed the types of disputes or claims that the Commission had authority to decide. Subsection (2)(b) reflected what had to be done to lodge a claim or dispute with the Commission.

[29] Section 25(3)(a) provided: “When considering a dispute or claim, the Commission must 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.” This provision meant that, when the Commission had to decide a dispute that fell under section 25(2)(a), such as the one that the Commission decided in this matter, the Commission was enjoined to apply not just customary law but customary law and the customs of the traditional community concerned as at the time of the events that gave rise to the dispute or claim. Section 25(3) must be contrasted with section 9(1)(a)(i). The relevant part of the latter provision reads:

“The royal family must, within a reasonable time after the need arises for the position of a king or a queen to be filled, and with due regard to applicable customary law—
(i) identify a person who qualifies in terms of customary law to assume the position of a king or a queen, as the case may be, after taking into account whether any of the grounds referred to in section 10(1)(a), (b) and (d) apply to that person.”

[30] The purpose of contrasting section 25(3) with section 9(1)(a) is to highlight the fact that both the Commission process and the section 9(1) process have a provision that requires that customary law be used to determine who qualifies to be the king or queen. The question that arises is: if, in deciding a dispute or claim relating to who should be the king or queen, the Commission has used or applied customary law and the customs of the traditional community concerned, why would a process be necessary which requires the identification by the royal family of a person to be the king or queen to be on the basis of customary law? That is effectively a duplication. Is the better interpretation not one that implies that the Commission’s decision has resolved the dispute and, if any interested party feels that the Commission did not apply customary law and the customs of the traditional community in question in deciding the dispute or claim, such party should take the decision of the Commission on review? I think that is the more plausible interpretation than one that says that the whole section 9(1) process must be exhausted because the latter interpretation results in the duplication of processes.

[31] Furthermore, section 9(1) applies to a case where the position of a king or a queen is to be filled and nobody has been identified by a lawful authority as the person entitled to be the king or queen. In this case the Commission has decided who is entitled to be the king or queen and, as long as it is accepted that the Commission had power to make that decision, the section 9(1) process for the identification of a person to be the king or queen is not applicable. In these circumstances the process in section 9(1) has no application in a case where the President is required to ensure an “immediate implementation” of the decision of the Commission.

[32] It seems to me that what should have happened after the Commission had conveyed its decision to the President is captured in the phrase “for immediate implementation in accordance with section 9 or 10 where the position of a king or queen is affected” in section 26(2)(a). In my view, this phrase articulates the purpose for which the Commission is required to convey its decision to the President. This must be viewed against the background that there would have been a dispute or claim about who should be the king or queen or some other traditional leader and the Commission would now have arrived at a decision to resolve the dispute or claim. The decision may say who qualifies to be the king or queen and/or who does not qualify to be king or queen.

[33] The purpose of the conveyance of the Commission’s decision to the President is that the President must take steps to implement it immediately. That is why section 26(2)(a) contains the phrase “for immediate implementation” soon after the phrase “convey to the President”. Part of the effect of section 26(2)(a) is that it places an obligation on the President not just to ensure the “implementation” of the decision of the Commission “in accordance with section 9 or 10” but also to ensure the “immediate implementation [of the decision] in accordance with section 9 or 10 where the position of a king or queen is affected by such a decision”. This necessarily means that it is not envisaged that anybody or functionary will have any role to play or any decision or step to take between the time when the decision reaches the President and the time when it is implemented by the President. As long as the decision of the Commission stands, the President may also not do anything inconsistent with the notion of “immediate implementation” of the decision of the Commission.

[34] The President’s obligation is to ensure the “immediate implementation” of the decision of the Commission “in accordance with section 9 or 10 where the position of a king or queen is affected by such a decision.” This phrase does not say: “where a king or queen is affected”. It says: “where the position of a king or queen is affected”. Accordingly, for purposes of section 26(2)(a) what is relevant is that the decision of the Commission affects “the position of a king or queen”. In the present matter the decision of the Commission did affect the position of a king. That being the case, the President’s obligation to ensure the immediate implementation of the Commission’s decision did arise as soon as he received the decision of the Commission. If, after the royal family had followed the section 9 process and had identified someone as the one entitled to be the king or queen and it gave that name to the President and the President recognised that person and issued a certificate of recognition in his or her favour, the President would have been implementing the decision of the royal family and not that of the Commission despite the fact that section 26(2)(a) obliged the President to implement the decision of the Commission.

[35] Once it is accepted that the decision of the Commission did affect the position of a king or queen, the next question that arises is: what did the section 26(2)(a) obligation on the President to immediately implement the decision of the Commission in accordance with sections 9 or 10 entail in practical terms? This question requires the identification of the steps and decisions that the section 26(2)(a) obligation required the President to take. It seems to me that, since it is clear from section 26(2)(a) that the obligation to implement the decision immediately is placed on the shoulders of the President, we must look at sections 9 and 10 to identify those steps and decisions that can be taken by the President in those sections and not steps or decisions that may be taken by someone else or by certain groups, such as, in this case, the royal family.

[36] When we go to sections 9 and 10, we must remember that the obligation to implement is that of the President and that it is an obligation to implement immediately. That means that any step or decision or procedure in sections 9 or 10 that falls outside the control of the President cannot be part of the steps or decisions that the President is required by his section 26(2)(a) obligation to take. This is so because, firstly, such a process would not be up to the President and, secondly, if the President has to wait for steps and procedures that must be taken by other people or bodies, he may be unable to fulfil his section 26(2)(a) obligation to implement the decision of the Commission immediately.

[37] To determine whether the President should first go to section 9 or 10 to take those steps or decisions envisaged in those sections that are necessary for him to fulfil his section 26(2)(a) obligation, it is necessary to ascertain what Mpondombini’s status or position was before and after the decision of the Commission. Mpondombini was appointed or installed as a Paramount Chief of amaMpondo aseQaukeni in 1978 or thereabout and, therefore, prior to 1994. Section 28(1) of the unamended Act reads as follows:

“Any traditional leader who was appointed as such in terms of applicable provincial legislation and was still recognised as a traditional leader immediately before the commencement of this Act, is deemed to have been recognised as such in terms of section 9 or 11, subject to a decision of the Commission in terms of section 26.” (Emphasis added.)

[38] As Mpondombini was appointed Paramount Chief prior to 1994, the question whether section 28(1) applied to him or not depends upon whether it can be said that he was appointed as a traditional leader “in terms of applicable provincial legislation” and whether he “was still recognised as a traditional leader immediately before the commencement” of the unamended Act. If the answers to both questions are in the affirmative, then in terms of section 28(1) he is deemed to have been recognised by the President as such in terms of section 9.

[39] Was Mpondombini appointed as a traditional leader in terms of “applicable provincial legislation”? The unamended Act does not define what “provincial legislation” or “applicable provincial legislation” means. It seems to me that “provincial legislation” in section 28 bears the same meaning as “provincial legislation” in sections 11(1)(b), 11(2), 26(2)(b) and 28(5). In fact, in section 26(2)(b) there is a reference to “applicable provincial legislation”, exactly the same phrase to be found in section 28(1). This suggests that such provincial legislation is legislation for which the relevant provincial government is responsible. That would normally be legislation that has been passed by a provincial legislature. Since Mpondombini was appointed prior to 1994, it is not clear whether the homeland legislation in terms of which he may have been appointed in the Eastern Cape was still operational immediately before the coming into operation of the unamended Act and, if so, whether the phrase “applicable provincial legislation” in section 28(1) can be said to include such homeland legislation.

[40] If Mpondombini cannot be said to have been appointed in terms of applicable provincial legislation as contemplated in section 28(1), then he was not a king in terms of the unamended Act because the definition of “king” in the unamended Act requires, among others, that a king be a person “recognised as such in terms of this Act”. However, even if Mpondombini was recognized as king before he died, the fact that he passed away means that the position is presently vacant. That means that there is no need to follow the section 10 removal procedure. This means that the position is that we need to go to section 9 to identify the steps or decisions that fall within the power of the President and which he must take in fulfillment of his section 26(2)(a) obligation.

[41] If Mpondombini was recognised as a king under the unamended Act, then his recognition could only have been in terms of section 28(1). Section 28(1) reads as follows:

“Any traditional leader who was appointed as such in terms of applicable provincial legislation and was still recognised as a traditional leader immediately before the commencement of this Act, is deemed to have been recognised as such in terms of section 9 or 11, subject to a decision of the Commission in terms of section 26.” (Emphasis added.)

It seems to me that the phrase “subject to a decision of the Commission in terms of section 26” in section 28(1) means that the deemed recognition that was conferred upon Mpondombini would come to an end if the Commission’s decision was to the effect that he was not entitled to be king. This was, of course, the decision of the Commission.

[42] It also means that, if the decision of the Commission was to the effect that he was entitled to be king, after that decision, he would then enjoy proper recognition as the king as opposed to the deemed recognition provided for in section 28(1). In the light of the decision of the Commission which held him not to be entitled to be king, Mpondombini’s deemed recognition as king ceased upon the issuing of the decision of the Commission. Accordingly, it was not necessary to remove him as king as provided for in section 10. The President did not, on the facts of this case, have to either initiate, or wait for, the removal of Mpondombini as king as part of the steps taken to ensure the “immediate implementation” of the Commission’s decision. This means that the President could go straight to section 9 when seeking to establish what steps or decisions he was required to take in order to fulfill his section 26(2)(a) obligation.

[43] Although the unamended Act does not say so expressly, it is implied that the first step that the President is required to take after the conveyance of the Commission’s decision to him is in turn to convey that decision to the royal family and all concerned. In a case such as this one in which, in my view, section 10 does not apply, the President would then go to section 9 and take those steps in section 9 that he may take to carry out his section 26(2)(a) obligation of immediately implementing the decision of the Commission. In seeking to identify the steps or decisions in section 9 that the President must take in fulfillment of his section 26(2)(a) obligation I think that the phrase “in accordance with section 9 or 10” in section 26(2)(a) necessarily means in accordance with section 9 or 10 mutatis mutandis (subject to necessary changes). In other words, the phrase “in accordance with section 9 or 10” is to be read subject to the necessary changes demanded by the context.

[44] I also do not think that the phrase “immediate implementation” in section 26(2)(a) means the implementation of the whole section 9 process. It seems to me that we must attach to section 26(2)(a) an interpretation that is sensible and most practicable. The interpretation that says only the steps contemplated in section 9(2)(a) and (b) are to be invoked in the implementation of the Commission’s decision by the President is the one that is sensible and most practicable.

[45] The foundation for the suggestion that the whole of the section 9 process applies even when the Commission has made a decision such as the one it made in this case is that the Commission’s decision is not final. I do not agree with this. In my view, the decision of the Commission is final and stands unless it is set aside by a court of law on review.

[46] Section 25(2) of the unamended Act lists a number of traditional leadership disputes and claims. The one in section 25(2)(a)(ii) is a dispute or claim relating to “a traditional leadership position where the title or right of the incumbent is contested”. This case relates to Zanozuko’s claim that he lodged with the Commission at the time Mpondombini was occupying the position of Paramount Chief or, maybe, when he was the deemed king. That brings Zanozuko’s claim within the ambit of a claim contemplated in section 25(2)(a)(ii).

[47] Section 25(1) conferred upon the Commission the “authority to decide on any traditional leadership dispute and claim contemplated in subsection (2) and arising in any province”. If, therefore, it is accepted that Zanozuko’s claim or the dispute in this case fell within the ambit of section 25(2)(a)(ii), then it must be accepted that it was a dispute or claim that the Commission had authority to decide under section 25(1).

[48] If the Commission had power to decide the claim, and, if it is accepted that it decided the claim or dispute, that decision cannot be a provisional decision but it is a final decision or determination of the dispute that is only subject to review by a court. The decision contemplated in section 25(1) which the Commission was required to make is a final decision or determination to settle the dispute or claim once and for all. There is nothing in section 25 that suggests that the decision contemplated in section 25(1) is anything other than a final decision. In my view, this alone militates overwhelmingly against the proposition that the decision of the Commission is provisional pending the decisions contemplated under the section 9 process.

[49] In any event, the section 9 process includes an internal dispute resolution process within the royal family as can be seen from the provisions of section 9(3) and (4). That internal dispute resolution process seems to fall within section 21(1)(a). Section 21(1)(a) reads:

“Whenever a dispute concerning customary law or customs arises within a traditional community or between traditional communities or other customary institutions on a matter arising from the implementation of this Act, members of such a community and traditional leaders within the traditional community or customary institution concerned must seek to resolve the dispute internally and in accordance with customs.”

[50] That means that, if there is a dispute within a royal family as to who is entitled in terms of customary law to be king or queen and there are different names, the royal family must try and resolve that dispute. However, section 21(1)(b) provides that “[w]here a dispute envisaged in paragraph (a) relates to a case that must be investigated by the Commission in terms of section 25(2), the dispute must be referred to the Commission, and paragraph (a) does not apply”. Therefore, the scheme of the unamended Act is that disputes that fall under section 25(2) are dealt with by the Commission and not “internally” as contemplated in section 21(1)(a) and as would happen if the whole of the section 9 process were to be applied in this matter. Section 9(3) and (4) would entail that the royal family resolves the dispute internally if the President refers it back to the royal family for reconsideration.

[51] The above considerations fortify me in the view that the provision in section 26(2)(a) that the decision of the Commission “be conveyed to the President for immediate implementation in accordance with section 9 or 10 where the position of a king or queen is affected by such a decision” does not mean the implementation of the whole process in section 9. What it means is this: section 9 has provisions which must be used to implement a decision of the royal family under section 9(2)(b) to recognise a king or queen who has been identified by a royal family. Those are the provisions that must be invoked by the President to implement a decision of the Commission about who is entitled to be the king or queen. In other words, when section 26(1)(a) refers to a decision of the Commission being conveyed to the President for immediate implementation in accordance with section 9, it simply means that, for purposes of implementing a decision of the Commission, the President must use the same provisions that he or she would otherwise use when seeking to implement the royal family’s decision to recognise a king or queen under section 9 and those provisions are section 9(2)(a) and (b). The same provisions are used to implement the decision, whether the decision is that of the royal family or that of the Commission.

[52] This makes sense when one considers that, prior to the unamended Act, the statutory power to appoint kings and queens was vested in the President and the unamended Act took that decision away and conferred it on the royal family when there is no dispute but on the Commission when there is a dispute. The amended Act has reversed the situation and conferred the power on the President when a dispute has been to the Commission and the Commission only makes a recommendation. Nothing turns on this amendment.

[53] Furthermore, by virtue of section 23(1), members of the Commission are required to be “knowledgeable regarding customs and the institution of traditional leadership”. By virtue of section 25(3), “[w]hen considering a dispute or claim, the Commission” is required to “consider and apply customary law and the customs of the relevant traditional community as they were when the events that gave rise to the dispute or claim” occurred. If the whole of the section 9 process applies when there is already a decision of the Commission, under section 9(1)(a)(i), (3)(b) and (4) the royal family would be obliged to apply customary law to resolve the dispute. Under section 9(1)(a)(i), the National House of Traditional Leaders would also be similarly obliged.

[54] It seems to me that the approach that says that, once the Commission has resolved the dispute or claim applying customary law, the position is that the immediate implementation of the decision by the President means invoking the steps provided for in section 9(2)(a) and (b) is more plausible. Section 9(2)(a) relates to the publication of a notice in the Government Gazette recognising the person decided upon. Section 9(2)(b) relates to the issuing of a certificate of recognition to the person decided upon.

[55] Understanding section 26(2)(a) in the way described above would mean that the reference to “the person identified as king or queen” in section 9(2)(a) would be read as “the person favoured by the decision of the Commission to be king or queen”. Viewed in this way, the section 26(2)(a) obligation on the President to implement the decision of the Commission immediately in accordance with section 9 mutatis mutandis would entail that the President, must publish a notice in the Government Gazette recognising the person favoured by the decision of the Commission as king or queen and issue a certificate of recognition to such person.

[56] There are difficulties with the proposition that, subsequent to the conveyance of the Commission’s decision to the President, the royal family would still need to identify “a person who qualifies in terms of customary law to assume the position of a king or queen as the case may be” as contemplated in section 9(a). The one difficulty is that the section 9(1) process is to be initiated by the royal family and not by the President. That means that that process is out of the control of the President and can, therefore, not be a step or process that the President may take in fulfillment of his section 26(2)(a) obligation. Another difficulty is that there could be a long delay before that process is initiated or completed and that is inconsistent with the notion of an “immediate implementation” of the Commission’s decision by the President as contemplated in section 26(2)(a).

[57] Another difficulty is that the section 9 process could lead to the identification by the royal family of a person other than the one favoured by the decision of the Commission as the person who is entitled to be king or queen. If that were to happen, the President would be put in an untenable and invidious position where the statute would place two conflicting obligations upon him to carry out at the same time in regard to the same subject matter.

The one obligation would be the President’s section 26(2)(a) obligation to implement the decision of the Commission immediately. The other would be the President’s obligation in section 9(1)(b) to recognise the person identified by the royal family as the person entitled to be king or queen in terms of customary law. So, while, on the one hand, section 26(2)(a) obliges the President to implement the Commission’s decision in favour of Zanozuko immediately, if the President were to follow the whole section 9 process in this case, section 9(1)(b) would oblige him to recognise the person identified by the royal family.

The result would be that section 26(1)(a) would be requiring the President to implement the decision of the Commission and, therefore, recognise Zanozuko whereas section 9(1)(b) would be requiring him to recognise somebody identified by the royal family and that person might not be Zanozuko. If the President were to allow the whole section 9 process to be complied with and the royal family identified somebody to be the king or queen who is different from the one identified by the Commission and the President gave effect to the decision of the royal family, he will not be effecting the Commission’s decision.

[58] As far as possible, a statute should not be construed in a manner that produces such a result. In my view, the President would be precluded from recognising the person identified by the royal family as long as the decision of the Commission stands because section 26(2)(a) places an obligation upon him to implement that decision immediately. Accordingly, a construction of section 26(2)(a) which contemplates that the whole section 9(1) process is applicable after the Commission’s decision may lead to a stalemate between the royal family and the President whereas the construction that only section 9(2)(a) and (b) can be applied in fulfillment of the President’s section 26(2)(a) obligation will not lead to such a stalemate or deadlock.

[59] Another difficulty with applying the whole section 9(1) process after the decision of the Commission relates to section 9(3). Section 9(3) reads as follows:

“Where there is evidence or an allegation that the identification of a person referred to in subsection (1) was not done in accordance with customary law, customs or processes, the President—
(a) may refer the matter to the National House of Traditional Leaders for its recommendation; or
(b) may refuse to issue a certificate of recognition; and
(c) must refer the matter back to the royal family for reconsideration and resolution where the certificate of recognition has been refused.”

Section 9(3) governs a situation where someone complains that the section 9(1) process of identifying a person to assume the position of a king or a queen, as the case may be, was not done “in accordance with customary law, customs or processes”. So the royal family could expedite the section 9(1) process as best they can, but, once there is such an allegation about that process, there is bound to be a delay because section 9(3) gives the President the discretion to refer the matter to the National House of Traditional Leaders or to refuse to issue a certificate of recognition in which case he is then obliged to refer the matter back to the royal family “for reconsideration and resolution”. Whichever route the President takes, a delay is bound to occur and the President will not be able to fulfill his section 26(2)(a) obligation to implement the decision of the Commission immediately. If the statute is construed in a manner which does not include following the whole section 9(1) process as part of the “immediate implementation” of the decision of the Commission, this difficulty will not arise.

[60] Furthermore, section 9(4) requires that, in a case where there was a complaint about the identification contemplated in section 9(1) and the President referred the matter back to the royal family for reconsideration and resolution and the royal family does resolve the matter, the President is only obliged to recognise the person identified by the royal family if he is satisfied that the reconsideration and resolution of the matter was done in accordance with customary law. Part of the difficulty here is that invoking the section 9(1) process after the decision of the Commission takes us back to square one, namely, when there is a dispute about who should be the king or queen – something that the whole process and decision of the Commission were meant to put to an end.

[61] It is necessary to point out that, whereas in a section 9(1) process that leads to section 9(3) and (4) the President is only obliged to recognise the person if he is satisfied that the reconsideration and resolution by the royal family were done in accordance with customary law, when it comes to a decision of the Commission it is not a condition precedent that, before he can recognise the person favoured by the decision of the Commission, he should first satisfy himself that the Commission’s decision is in accordance with customary law. Instead, he is simply required to immediately implement the decision of the Commission. That this is not a condition precedent in regard to a decision of the Commission is understandable because one of the requirements for the appointment of members of the Commission is that they should be knowledgeable about customs and the institution of traditional leadership.

[62] I have read the judgment prepared by my Colleague, Froneman J (second judgment). I only wish to make two or three points in regard to the second judgment. The first is that the interpretation adopted in this judgment does not deny customary law its rightful place. The statute itself requires customary law to be applied in identifying and deciding upon the person entitled to be the king or queen. This judgment simply says that there is no need to repeat that process through invoking the entire section 9 process in a case where customary law has already been applied by a legitimate and lawful body to resolve precisely this issue.

[63] Second, as explained elsewhere in this judgment, the interpretation adopted by the second judgment could potentially have resulted in a situation where, after the Commission had decided upon the person entitled to be the king or queen, the whole section 9 process was invoked and the royal family identified a different person as the one entitled to be the king or queen. This would have meant that the royal family and the Commission would have made conflicting decisions on who was entitled to be the king or queen. The Commission’s decision would have been an administrative decision which would have been binding on the President and the royal family’s decision would also have been binding on the President by virtue of section 9.

Conclusion

[64] In conclusion I want to make this point. Sometime after the Commission had announced its decision that amaMpondo aseQaukeni met the requirements to be a kingship or queenship, Zanozuko lodged with the Commission a claim that he was entitled to be the king of amaMpondo aseQaukeni. The whole royal family got to know about the claim. Mpondombini certainly got to know about it because he subsequently contested Zanozuko’s claim and maintained that he was the one entitled to be the king. This dispute about who was entitled to be the king of amaMpondo aseQaukeni was then resolved by the Commission after it had heard evidence adduced by both sides.

[65] The decision of the Commission, after it had taken into account customary law and customs, was that Zanozuko was the one entitled to be the king and in effect that Mpondombini was not entitled to be the king. That decision of the Commission has not been set aside. That being the case, as long as the decision of the Commission stands, the first applicant cannot be entitled to be king or queen either.

In the circumstances the appeal must fail. No costs order should be made against the applicants in the light of Biowatch.

[66] In the result the following order is made:

1. Leave to appeal is granted.
2. The appeal is dismissed.
3. There is no order as to costs.