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IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MTHATHA]
CASE NO. 3501/2019
In the matter between:
KING PHAHLO ROYAL FAMILY 1st Applicant
LUZUKO MATIWANE 2nd Applicant
And
SIMPHIWE SYDWELL MOLOSI 1st Respondent
NTOMBENKONZO MASETHI 2nd Respondent
DOSINI ROYAL FAMILY 3rd Respondent
THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 4th Respondent
THE MINISTER OF CO-OPERATIVE GOVERANCE AND
TRADITIONAL AFFAIRS 5th Respondent
THE PREMIER OF THE EASTERN CAPE 6th Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOLWANA J
Introduction
[1] This matter concerns the incumbency of the kingship of AmaMpondomise. The
history of the kingship of AmaMpondomise is very long as it dates back before the
13th century. There are no historical records that I am aware of that were written in
2
the 13th century and before. The historians that have written on the subject would
have written based on the oral traditions of story-telling from generation to
generation much later. An element of doubt on whether the facts so recorded have
in fact been accurately recorded, even by the historians themselves would be
justifiable especially if one assumes that communication might have been facilitated
through interpretation due to possible language differences in some instances. For
these reasons and many others, the history of this matter, including its recorded
format is extremely convoluted.
Background
[2] Brooks J dealt with some of the issues in this matter - and he has summarised
very succinctly some of the history of the AmaMpondomise kingship in Matiwane1.
Because of the interconnectedness of this matter with Matiwane, I do consider it
necessary to start where Matiwane ended which resulted in these proceedings.
[3] This Court said in Matiwane:
“On a conspectus of all the evidence and the material which supports it, in my
view it has been established on a balance of probabilities that AmaMpondomise
had a kingship, alongside the three other major kingdoms whose rootedness in
the Eastern Cape is indisputable. Factors beyond AmaMpondomise control
such as Mfecane wars, colonial occupation and colonial administrative acts
placed AmaMpondomise under enormous pressure, leading to partial
disestablishment and disarray. However, every indication is that since the mid
nineteenth century, repeated attempts have been made by AmaMpondomise
leaders to restore or reinstate recognition of AmaMpondomise kingship. Those
attempts have not failed because of the emergence of strong views from within
AmaMpondomise which indicate that a groundswell of support for a community
without a kingship. Rather, again, those attempts have been thwarted by
1 Matiwane v President of the Republic of South Africa and Others [2019] 3 All SA 209 (ECM)
3
apparent political expedience, government inefficiency and, most recently,
administrative action which is inconsistent with the Constitution.”2
[4] Brooks J thereupon issued a court order in which he also ordered that:
“4. It is declared that AmaMpondomise did have a kingship and that such kingship is
hereby reinstated.”3
[5] This historic decision having been made by the Court and the kingship of
AmaMpondomise having been restored; but the question of incumbency remained
unresolved. The issue of incumbency was no longer before court as the fifth and
sixth respondents in Matiwane who are the first and third respondents in this matter
had withdrawn their earlier opposition to that application on condition that the
applicant in those proceedings who is the second applicant in this matter no longer
pursued his claim for the kingship of AmaMpondomise.
[6] The first applicant and the third respondent sent their respective resolutions to the
fourth respondent in which they identified the second applicant and the second
respondent respectively, as the rightful persons entitled to the throne of
AmaMpondomise kingship/queenship in compliance with section 9 of the Traditional
Leadership and Governance Framework Act 41 of 2003 (the Framework Act).
[7] Section 9 of the Framework Act reads as follows:
“9 Recognition of kings and queens
(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-
2 Ibid at para 65. 3 Ibid at para 73.
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(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 and the Minister with reasons for the identification
of that person as king or queen;
(cc) give written confirmation to the President that the Premier of the province
concerned and the Minister have been informed accordingly; and
(b) The President must, on the recommendation of the Minister and 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 kingship or queenship has been recognised in terms of Section
2A; and
(iii) the functions that will be performed by the king or queen;
(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 Gazette recognising the person identified as king or queen; and
(b) the issuing of a certificate of recognition to the identified person.
(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 on the recommendation of the Minister-
(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 recognition
[reconsideration] and resolution in terms of subsection (3) has been reconsidered and
resolved, the President on the recommendation of the Minister must recognise the person
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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.
(5) (a) The President may, by notice in the Gazette, make regulations concerning-
(i) the traditional or ceremonial role of a king or queen;
(ii) the responsibilities of a king or queen in respect of nation building; and
(iii) other functions or roles of a king or queen.
(b)Regulations made in terms of paragraph (a) must be tabled in Parliament after their
publication in the Gazette”.
[8] Dr Cassius Lubisi, the Director General in the office of the fourth respondent
wrote a letter dated 02 August 2019 to the first applicant and the third respondent in
which he communicated the decision of the fourth respondent as follows:
“12. The President has been advised by the Minister of Co-operative Governance and
Traditional Affairs that Government does not have the legal authority to be involved in
any of the royal family processes of nominating on hair. Only the Royal Family through
the customary structure has the authority to identify a person who qualifies in terms of
customary law to assume the position of a king or queen. Once the royal family has
finalised its processes of choosing the rightful heir, it then notifies government to
facilitate all the required administration processes of recognising and appointing the
Kingship and King respectively.
13. The President has therefore decided to refer the matter back to the Royal Family for
reconsideration and resolution. The two families are requested to resolve the matter
internally and nominate one common heir for the President to recognise as the King of
AmaMpondomise.”
Relief sought
[9] It does not appear that the first applicant and the third respondent met,
reconsidered and resolved the matter. Instead the applicants instituted this
application seeking the following relief:
“1. That the resolution dated 31 May 2019, annexure “G56” attached to the founding
affidavit, issued by the third respondent in terms of which it identified Ntombenkonzo
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Maseti (“second respondent”) as the King or Queen of AmaMpondomise is declared
unlawful and void ab initio, and accordingly set aside.
2. Declaring that the third respondent is not a royal family entitled and responsible for
the identification of any person and making recommendations to the fourth
respondent in terms of section 9 of the Traditional Leadership and Governance
Framework Act 41 of 2003 to assume kingship or queenship of AmaMpondomise,
which position was left vacant by king Mhlontlo.
3. That the first to third respondents are finally interdicted from identifying a person to
assume kingship or queenship and making recommendations to the fourth
respondent in terms of Section 9 of the Traditional Leadership and Governance
Framework Act 41 of 2003, to assume kingship or queenship of AmaMpondomise,
which position was left vacant by King Mhlontlo.
4. The fourth respondent is directed to recognise the second applicant as King of
AmaMpondomise, and to comply within 30 days of this order, with and implement
the first applicant’s resolutions in terms of which the second applicant (“Luzuko
Matiwane”) is identified as the King for AmaMpondomise.
5. The letter, annexure “E” to the founding affidavit written by Dr Lubisi, dated 2nd
August 2019, advising the fourth respondent not to implement the resolutions of the
first applicant is declared unlawful and invalid, accordingly is set aside.
6. That the respondents are ordered to pay the costs of this application only in the
event of opposing the application.”
The facts
[10] There are a number of factual averments on which this application is based
which appear in the founding affidavit deposed to on behalf of the applicants. Some
are not, in my view, pertinent to the issues for determination even though they may
be important as background information of historical and contextual relevance. The
answering affidavit deposed to on behalf of the first, second and third respondents,
the only respondents who are opposed to this application similarly contains a lot of
factual material of historical and contextual significance. Not all such facts are
necessarily relevant for the determination of the issues in this matter. To the extent
that I may not deal with some of them, that does not mean that such facts have not
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been considered in determining this matter which is firmly embedded in its history
and whose organic evolution cannot be divorced from the historical context that
dates back to a period of over seven centuries.
The applicants’ case
[11] The summary of some of the factual averments on which this application is
based is contained in the following paragraphs of the applicants’ founding affidavit:
“25. The dispute in these proceedings is pursuant to the judgment of this Honourable Court
under case number 2047/2018 which was delivered on 16 May 2019. The essence of
the aforesaid judgment was the reinstatement of AmaMpondomise kingship which was
unlawfully withdrawn by the colonial government during the reign of king Mhlontlo
subsequent to the death of a Qumbu Magistrate, Mr Hamilton Hope. A copy of the
judgment is attached hereto marked “C”.
26. A careful reading of the judgment and the order contained therein would reveal that
indeed AmaMpondomise did have a kingship and such kingship has since been
reinstated in terms of the aforesaid judgment. This has been accepted by all the parties
in that litigation.
27. The kingship of AmaMpondomise, as reinstated in terms of the judgment, fully set out in
the judgment under the heading “THE ESTABLISHMENT OF THE AMAMPONDOMISE
KINGDOM AND THE SUCCESSIVE KINGS OF THAT KINGDOM.”
28. First, the time when the kingship of AmaMpondomise was unlawfully removed by the
colonial government, it was King Mhlontlo who was on the throne as King.
Axiomatically, the reinstatement of AmaMpondomise kingship, as has since been done
by the court, would mean that if King Mhlontlo was still alive, he would immediately
assume his position.
29. Second, the reinstatement of the kingship means that it is restored or reinstated to the
royal family house that was ruling at the time of dispossession.
30. Third, the reinstatement directed by the court is only in the context of dispossession of the
kingship by the colonial government and nothing else. The proceedings were instituted
on that basis. The factual matrix in that matter supported the conclusion that the
dispossession of kingship was at the instance of the colonial rule. It is for these reasons
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that upon reinstatement the person who was unlawfully removed from kingship be
reinstated and assume the position of a king. That this is so follows by logic.
Restoration of the kingship that was removed from a person may not occur in vacuum or
in the air.
31. However, at the time of the delivery of the judgment, King Mhlontlo had unfortunately
passed on and the Royal Family became obliged to act in terms of section 9 of the Act
and identify his successor. The custom of the AmaMpondomise dictates that the first
son from the Great House of the King or his direct descent, must assume the position left
by his father or grandfather, unless there are other compelling reasons which include
disinheritance or disentitlement, such son would be the King or it would pass to another
one.
32. In the case of AmaMpondomise, the second applicant is a direct descent of King Mhlontlo.
There was no compelling reason that would prohibit the second applicant from being
nominated to assume the position of a king of AmaMpondomise. For that reason and
others, the King Pahlo Royal Family unanimously identified the second applicant to
assume the position of a King of AmaMpondomise left vacant by the death of his great
grandfather, King Mhlontlo. This was in accordance with the provisions of section 9(1)(a)
of the Act.”
[12] The lineage of the second applicant which I do not understand to be in dispute is
reflected in the founding affidavit as follows:
“35.3 Since [King Mhlontlo] passed on in 1912, then his grandson, Luzuko Matiwane (the
second applicant) had to ascend the throne in terms of the tradition and custom of
AmaMpondomise which has been practiced since the reign of King Cira, King Mte,
King Sabe, King Qengeba, King Majola, King Ngwanya, King Pahlo, King Sontlo,
King Mngcambe, King Myeki, King Matiwane and King Mhlontlo who gave birth to
Prince Charles and then Prince Sigidi and Welsh, the father of Luzuko Matiwane,
second applicant.”
The respondents’ case
[13] Save where I refer to a specific respondent, for the sake of brevity and clarity I
shall refer to the first, second and third respondents as the respondents. The other
respondents do not oppose this application with the fourth respondent merely filing
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an explanatory affidavit. Accordingly, they shall be referred to as cited should it be
necessary to refer to anyone of them.
[14] The second respondent deposed to an answering affidavit also on behalf of the
first and third respondents in which she describes herself as a member of the core
ruling family of AmaMpondomise, and the person nominated by the third respondent
to be the queen of AmaMpondomise.
[15] The respondents have also raised two points in limine, being the failure to
exhaust internal remedies as well as lack of urgency in addition to their other
grounds for opposing this application. I will deal with these points in limine later.
[16] In the main the respondents’ basis for opposing this application is that the
second respondent is the descent of Dosini who was the heir of king Ngcwina. At
paragraph 66 of the answering affidavit the second respondent states that:
“Dosini fathered Nqabashe the father to Ncelenduna. Ncelenduna fathered Mqhorana
the father to Hala. Hala fathered Marule the father to Mxoko. Mxoko fathered
Gxaba the father to Nyakatya. Nyakatya fathered Sigwili, the father to Masethi.
Masethi fathered Ntamnani the father to Myezo. I am the eldest daughter of the late
Myezo.”
[17] This lineage is not in dispute and in fact appears to be common cause. It was
on the basis of this lineage that the second respondent was identified by the third
respondent to be recognised by the fourth respondent as queen of AmaMpondomise
following the judgment of this Court in Matiwane in which the kingship of
AmaMpondomise was reinstated.
[18] The respondents’ fundamental contention is that they do not recognise the
kingship of king Mhlontlo and all those who reigned before him up to king Cira.
There is no dispute or issue about the kingship of AmaMpondomise before and up to
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king Ngcwina. It appears that the applicants accept that Dosini was ordinarily the
heir to the kingship of king Ngcwina as he was the first born son of king Ngcwina’s
great wife MaMqwathi and therefore the heir to king Ngcwina’s kingship. It is
similarly not in dispute that one of the sons from one of the lower houses of king
Ngcwina was Cira who was later preferred for kingship by king Ngcwina who
disinherited Dosini and appointed Cira as king of AmaMpondomise.
[19] The lineage and kingship of Cira is therefore at the centre of the dispute hence
those who inherited the kingship after him are not recognised as kings by the
respondents who have described them as regents or even imposters.
[20] The third respondent’s resolution of the 31 May 2019 captures in very brief but
succinct terms the historical basis of the second respondent’s claim to the throne of
AmaMpondomise and therefore the rejection of the applicants’ claim in the following
terms:
“THE DOSINI ROYAL FAMILY RESOLUTION
WHEREAS
1) The Dosini Royal Family, on 31 May 2019, at Ntshongweni Administrative
Area, Qumbu, Eastern Cape Province held a meeting.
2) Notes the judgment handed down by the High Court of South African Eastern
Cape Local Division: Mthatha, on 16 May 2019 restoring and re-instating the
Amampondomise Kingship.
3) Further notes that the Court’s decision indicates the long standing contention
that AmaMpondomise are a Kingdom, and therefore had a Kingship.
4) Emphasized that the founding King was Mpondimise. On Mpondomise’s
demise his heir Ndunu took over. When Ndunu died his heir Sikhomo
succeeded. When Sikhomo died his great son and heir Njanya took over.
Njanya’s great son and heir Ntose took over on the demise of Malangana.
5) The Mpondomises further note that when Ntose died, his great son and heir
Ngcwina succeeded in terms of the custom.
6) Further notes that, Ngcwina violated the Mpondomise customary law of
succession when he disinherited or deprived his great son and heir Dosini of
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the Kingship of AmaMpondomise in favour of his son Cira from the sixth
House.
7) Emphasized that the Kingship of AmaMpondomise ended on that date.
8) Agreed that the restored Kingship is that Kingship which was lost during the
time of Ngcwina4.
Therefore resolved that:
a) The Dosini House is the rightful [house] to hold the AmaMpondomise
kingship.
b) The Dosini Royal Family which is constituted by among others, Cwera,
Mpinga, Bhukwana, Nxontwe, Ngcitshane and others is the rightful Royal
Family and the custodian of the AmaMpondomise Kingship.
c) The rightful heir to the Kingship/Queenship of the AmaMpondomise is
Dosini’s great grand-daughter Ntombenkonzo Maseti.”
[21] The respondents’ answering affidavit is replete with a lot of historical narrative
and reference to a number of writers all of which are submitted to support the
contentions stated in their resolution of 31 May 2019. In all of the historical narrative
that forms the balk of these papers it is common cause that both Dosini and Cira
were the sons of king Ngcwina. Dosini was the one ordinarily entitled to inherit king
Ngcwina’s kingship and not his son from one of the minor houses, Cira. It is also
common cause that it was king Ngcwina himself who disinherited his son from the
great house, Dosini in favour of Cira.
[22] The bone of contention is that the disinheritance of Dosini was not done
according to customary law. That disinheritance resulted in Cira ascending to the
throne instead of the son from the great house, Dosini. The respondents,
consequently do not accept the disinheritance of Dosini. In a nutshell the
respondents contend that Cira’s ascendance to the kingship was unlawful in that its
foundation - the disinheritance of Dosini, was not done according to customary law
4 My underlining.
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and custom of AmaMpondomise. The respondents submit that at best for Cira and
his successors up to Mhlontlo, they were regents or chiefs hence the second
applicant cannot claim the kingship on his lineage from them.
[23] The respondents have not, however, given any factual basis for their contention
that the kings who reigned from Cira to Mhlontlo could only have been regent kings.
Nowhere in the answering affidavit is it alleged that as a matter of fact Cira was
appointed as a regent king pending whatever future event after which the actual king
ought to have been appointed. There are simply no facts alleged to suggest that
there was a process in which Cira was appointed as a regent king.
The regency of Cira and his descendants
[24] As already alluded to above, the respondents deny that Cira and the other kings
who succeeded him up to Mhlontlo were in fact kings. I deal with those denials
hereunder.
[25] Firstly, on 11 June 2004 Mr S.P. Madasa and Mr S.S. Molosi co-wrote and co-
signed three letters which, in no uncertain terms, acknowledged that since Cira up to
and including Mhlontlo, all those kings reigned as kings until they were displaced by
the colonialist government in what the two gentlemen described as their kingship
being “vindictively wrested”.
[26] The first letter starts at page 723 of the papers and is addressed to the Minister
of Provincial and Local Government and is part of annexure “NM11” to the answering
affidavit. At paragraphs 3 and 4 thereof Messrs Madasa and Molosi wrote:
“Authentic oral tradition and written historical records confirm the existence of
Mpondomise Monarchy in an unbroken genealogical succession for 15 generations
from king Mpondomise (twin brother of King Mpondo to 1904 when it was vindictively
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wrested from the incumbent king of the time although he was found not guilty in May
1904 of the murder of magistrate Hamilton Hope on 23/10/1880.
…
This matter therefore is a unanimous petition for the restoration of official recognition
of the undisputed Mpondomise kingship which existed for 15 generations (more than
375 years) until it was withdrawn by an oppressive colonial government in 1904 and
denied by successive settler regimes and their Bantustan surrogates and the
redress of a century of wrong against our people.”
[27] The second letter is at page 726 and is addressed to the Speaker of the Eastern
Cape Provincial Legislature. In the last paragraph thereof the two gentlemen say:
“Two reports in the daily dispatch of 24 February 2004 and 18 March 2004 indicated
that the report of the Standing Committee on Traditional Affairs was tabled in the
Legislature early this year but had not been debated and adopted in the house. In
the interest of redressing the grievous injustice done against our people by an
oppressive colonial government in divesting the Mpondomise of monarchy status in
1904 although their king had been found not guilty of murder in court the Royal
Council hereby appeals for early consideration and debate of the report of the
Standing Committee on Traditional Affairs by the Legislature and submission of the
decision of the house to the offices of the Premier, the Minister for Provincial and
Local Government and the President for recognition of the kingship status of the
Mpondomise people about which there is no dispute.”
[28] The last letter is at page 727 and is addressed to the Premier of the Eastern
Cape Province. The last paragraph thereof reads:
“In the interests of redressing grievous injustice done against our people by Colonial
Governments settler regimes and their Bantustan surrogates, the Royal Council
respectively appeals for early consideration and debate of the report of the
committee of the Legislature and submission of appropriate recommendations of the
house to the Minister of Provincial and Local Government and the President for final
decision.”
[29] All those letters were written on behalf of the Mpondomise Royal Council and
therefore could not possibly have been expressions of personal opinions and it was
never contended that they were. It is also not without significance that the second
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writer and cosignatory to the three letters, Mr S.S. Molosi is the first respondent in
these proceedings.
[30] Secondly, at page 744B – 746 of the papers there is a document which was
written by the second respondent’s grandfather Mr Jejane Myezo Maseti in which he
was applying for his recognition and installation as the Paramount Chief of
AmaMpondomise. At page 2 of that document he expressed himself as follows:
“When we consider the question as to who is the rightful king of the Mpondomise at
this point in time, VICTOR TONJENI falls way out of line. The kingship belonged to
the DOSINI of whom I am rightful heir – Great House. Even in the family tree
furnished by the historians TONJENI does not appear. The eldest son of one of the
wives of the great King NCWINI, father of DOSINI, was BUKWANA and TONJENI is
no descendant thereof. The eldest son of the Right Hand House was NXONTWE
and TONJENI is no descendant thereof. CIRA was the son of the minor house and
on him, by sheer accident of history, the Kingship fell and CIRA’s line ran the show
for several decades [centuries]. It is on that basis that CIRA’s descendants now lay
claim to the kingship, and we hope to persuade them to appreciate the realities of the
situation and abandon their claim in our favour. As for MR TONJENI, he is way out of
line and there is no basis whatsoever on which he can reasonably pursue the claim.
We know exactly what his true origins are and at the appropriate time we shall spell
out all details.”
[31] In my view, it is clear that on the conspectus of all the evidence, and on a
balance of probabilities Cira and all the kings who reigned after him up to Mhlontlo,
were all reigning as kings and not as chiefs or regent kings. Any suggestion or
contrary submission is not supported by the facts and the evidence including the
admissible evidence submitted by the respondents themselves in annexure NM11.
Therefore the respondents’ submissions that Cira and all the kings who reigned after
him were anything less than a full monarchy is unsustainable.
The disinheritance of Dosini.
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[32] On the merits, the respondents’ main pillar of their case is that in disinheriting
Dosini, king Ngcwina did not observe customary law and custom. For the purposes
of context and for a better understanding of the basis on which the respondents
oppose this application on the merits, I consider it imperative that their historical
narrative of AmaMpondomise as a nation and the circumstances in which they allege
that the disinheritance of Dosini occurred is fully adumbrated.
[33] In their answering affidavit the historical background of the origins of
AmaMpondomise as a nation, their kingship and the disinheritance of Dosini are
detailed as follows:
“84. On being nominated by the Dosini Royal Family to the position of AmaMpondomise
Kingship, I decided to enrich my knowledge and conducted my own research about the
history of AmaMpondomise Kingdom, its Kings and other traditional leaders; customary
laws governing the AmaMpondomise traditional leadership with emphasis on Kingship;
Royal Family etc. I have spoken to old people who have some knowledge in this regard,
consulted books and related
documents.
85. Before dealing with substantive issues raised or averments made in the Applicant’s
Founding Affidavit, and other documents annexed to it, it is important that I first deal with
or address three pertinent issues that are crucial whenever there is a dispute relating to a
traditional leadership position, whether Kingship or Chieftainship or Headmanship. These
issues are firstly, the history of the AmaMpondomise Kingship; secondly, the customary
law of succession in the AmaMpondomise Kingship; and thirdly, the constitution and role
of the Royal Family.
86. As I know it, the AmaMpondomise history was told to me by my father and my other
relatives, is as follows:5
86.1 It is said that the now AmaMpondomise nation originated from North East Africa,
somewhere between Lake Tanganyika and Lake Nyasa. The area is now
occupied and shared among three countries of Malawi, Tanzania and Zambia.
They and their brothers AmaMpondo and AmaXesibe, were for a long time
5 There was a typographical error in the numbering in which instead of 86.1 the affidavit reflects 85.1. This has been corrected for consistency.
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known as aba-Mbo (the Mbo nation). It is said that, this is the same area in which
the amaXhosa, the descendants of Ntu trace their origin from.
86.2 The Mbo nation moved southwards and settled near Zambesi River for a
considerable period before crossing it and settling near Mhlathuzi River,
occupying areas now inhabited by Swatini and Zulu people or nations. It is not
known who led the aba-Mbo nation out of their known original settlement, to the
Zambezi River and later to their third settlement near Mhlathuzi River.
86.3 It is only when they were in their third settlement that the names of their
successive Kings are mentioned. Sibiside, whose Great Place and grave are
said to be near Mhlathuzi River is said to be the first known leader of the aba-
Mbo nation.
86.4 Sibiside fathered Njanya. Njanya is the father of the twins Mpondo and
Mpondomise. On the demise of Njanya, the question of succession arose and
without this matter being decided in the battle as it used to be the practise in the
past, the younger twin Mpondo decided to leave the Great Place with his aba-
Mbo followers and founded the amaMpondo Kingdom and thereby leaving his
twin brother Mpondomise on his father’s throne as the king of the mainline of the
aba-Mbo kingship.
86.5 Mpondomise fathered Ndunu as his great son and heir to the Kingship of the
aba-Mbo nation. In turn Ndunu’s issue was Sikhomo built his Great Place not far
from his father’s place in Natal. Sikhomo fathered two sons Njanya and his great
heir Rudulu.
86.6 Njanya on the other hand had one issue, Malangana, a man of great abilities, a
magician, renowned hunter and great Mpondomise King during his time.
86.7 The aba-Mbo nation lived in Natal /Swatini area, their third settlement for about
six generations under the following Kings Sibiside - Njanya - Mpondomise -
Ndunu - Sikhomo -Njanya.
86.8 On the demise of King Njanya, his great son and heir Malangana, who was
assisted by his maternal uncle Rudulu led the Aba-Mbo movement from their
third settlement in Natal/Swatini, crossed the Umzimkhulu River and settled near
the source of a mysterious river called Dedesi. This is where they joined
AmaXhosa and AbaThembu under the Kings Togu and Hala respectively.
17
86.9 It is important to note that the Aba-Mbo nation were the fourth nation after
AmaXhosa, AbaThembu and their twin brothers AmaMpondo to have moved
from North East Africa, to Natal and settled near Dedesi River. It is also
important to note that it was near Dedesi River where the reference to them as
the AmaMpondomise was first made by the AbaThembu King Hala.
86.10 They lived near Dedesi River for about two generations, Malangana and Ntose.
It was during Malangana’s time that AmaMpondomise explored and set their
boundaries in the area between Umzimkhulu and Mthatha Rivers, and between
Drakensberg Mountain and up to the boundary of AmaMpondo in the east.
They traversed this area hunting animals and are said to be the first to have
occupied it.
86.11 Therefore the boundary lines of the Kingdom of AmaMpondomise is between
Umzimkhulu to Mthatha Rivers, and between Drakensberg to the AmaMpondo
Kingdom in the east. This is where most of their footprints in the form of graves
of their Kings and Chiefs or viable settlements are found even today.
86.12 On the demise of Malangana, his great son Ntose assumed the
AmaMpondomise Kingship. Ntose was the first King to have married more
than one wife. For example, he married three wives. In his first wife, whose
lobola was not paid through the contribution of the nation, issued Cwera. From
his second wife whose lobola once more was not paid though the contributions
of the nation, he issued Mpinga.
86.13 It is important to state that, it was for this (above) reason that neither Cwera or
Mpinga ascended to the AmaMpondomise Kingship. Ntose’s third wife, and
whose marriage was arranged between the two Royal dynasties and lobola
paid through the contributions of the AmaMpondomise nation gave birth to
Ngcwina, the heir to the AmaMpondomise Kingship. Ngcwina’s younger brother
from the same mother was Dombo. It is important to note that Ngcwina’s
mother though last to be married became the First Wife, and therefore Great
Wife who then established the Great House.
86.14 Cwera’s mother established the Right Hand House. The Great House and the
Right- Hand Houses are the most important houses regarding decision making
in the AmaMpondomise Kingdom. The rest of the other houses support these.
86.15 On the death of Ntose, his great son and heir from the Great House Ngcwina
was still underage to succeed, as a result the family chose Cwera to act until
18
Ngcwina came of age. When Ngcwina reached majority and was in a position
to take his father’s position as the King, Cwera stepped down and allowed
Ngcwina to succeed.
86.16 Ngcwina moved the Great Place and settled in the present district of Matatiele
in the area of Mvenyane. During his time Ngcwina married a number of wives.
The first wife whose marriage was not arranged between two Royal dynasties
and whose bride wealth was not paid for through the contributions of the
AmaMpondomise nation gave birth to Bhukwana. These are some of the
reasons why Bhukwana could not succeed his father.
86.17 After Ngcwina’s marriage with Bhukwana’s mother, a Royal marriage was
arranged between the AmaQwathi Royal House whereupon their daughter
MamQwathi became Ngcwina’s Great Wife. It was this marriage that produced
Dosini, Ngcwina’s great son and heir to the AmaMpondomise throne. She also
gave birth to two Dosini’s young brothers Ngqukatha and Gcaka. On
MamQwathi’s arrival, she assumed the status of being the Great Wife, and
therefore established the Great House of Ngcwina. At the same time
Bhukwana’s mother assumed the status of being Right-Hand Wife and
therefore established the Right Hand House in terms of the AmaMpondomise
custom.
86.18 MamQwathi was the wife specifically married to give birth to an heir. She thus
was the Great wife. She is the mother of Dosini.
86.19 Ngcwina’s third wife whose lobola was not paid through the contributions of the
nation issued Nxotwe. The fourth wife gave birth to Ngcitshane, whereas the
fifth one issued Ngcinase.
86.20 King Ngcwina found himself having to marry the sixth wife in an attempt to
conceal or reduce the impact of the embarrassment of his disgraceful or
immoral act to the nation. He got pregnant his own adopted Thwa girl whom he
had adopted as a young girl brought to the Great Place by his hunting
regiments who discovered her in a cave near where the town of Mount Ayliff is
today.
86.21 The young girl grew up as a daughter to the King and his Great Wife
MamQwathi. She knew no other parents other than the King and Queen. She
knew no other brothers other than Dosini, Ngqukatha and Gcaka. No lobola
was paid.
19
86.22 The Thwa-girl’s pregnancy happened simultaneously with that of MamQwathi
with Dosini. The Thwa-woman gave birth to Cira and as Mda observes, that
was when the dust storm began. On the other hand MamQwathi gave birth to
the AmaMpondomise heir Dosini. A separate homestead was built for the Thwa
woman.
86.23 As if making the Thwa-girl pregnant and making her his wife was not
scandalous enough, Ngcwina earned the wrath of the nation by his unilateral
act of attempting to switch Kingship line from MaMqwathi House (Dosini’s
mother) to Thwa-woman House (Cira’s mother) without following the
AmaMpondomise custom. In other words, he attempted to choose Cira over
Dosini as his heir to the AmaMpondomise Kingship without following or
observing custom.
86.24 Ngcwina’s sons including Bhukwana, Nxontwe, Ngcitshane, Zumbe as well as
other senior houses such as that of Cwera and Mpinga refused to participate or
endorse Ngcwina’s wishes.
86.25 As a result of Ngcwina’s demise, the Royal Family instructed Dosini to move
the Great Place and establish it at Mhlabathi. Secondly, other AmaMpondomise
prominent house were spread across the unoccupied land of AmaMpondomise
Kingdom. For example, Cwera was allowed to settle near where the town of
Ntabankulu is today which at that stage was a boundary between the
AmaMpondo and AmaMpondomise nations. Nxontwe settled at Ntibane near
Tsolo. Bhukwana settled around Sulenkama near Qumbu. Zumbe settled in
Ndzebe near Tsolo. Ngcitshane and Debeza sent to Maseleni and Debeza near
where the town of Qumbu is today. Nxuba settled around Mjika area near
Tsolo, mostly at the boundary between AmaMpondo and AmaThembu. Mpinga
settled near Tina River not far from where the town of Qumbu is today. These
were strategic deployments directed by Dosini and his Royal Family.
86.26 Cira later moved from Mvenyane and settled not far from Dosini. The fight
between Dosini and Cira which started when Ngcwina attempted to confer the
AmaMpondomise Kingship to Cira in violation of AmaMpondomise custom
continued since then. The peace, stability and harmony that Mpondomises had
enjoyed came to an end as the fight for Kingship between Dosini and Cira and
in many cases among the Cira descendants continued unabated for centuries.
20
86.27 Dosini’s descedants in terms of the AmaMpondomise Kingship were
Nqabashe-Nceleduna - Mqhorana - Hala - Marule - Mxoko - Gxaba - Nyakatya
- Sigiwili - Masethi- Ntamnani - Myezo - Ntombekonzo. On the other hand,
Cira’s descendants were Sabe - Mte - Qengebe - Majola - Ngwanya -
Ngcambe - Myeki - Matiwane - Mhlontlo”.6
[34] It will be observed from the above narration that at paragraph 86.25, the
respondents allege that on the instructions of the Royal Family, Dosini moved the
great place and established it at Mhlabathi after the death of king Ngcwina. The
respondents are, however, surprisingly silent on what happened to that great place,
the Royal Family and the Dosini kingship thereat. It is also not clear which areas
were ruled by Dosini after he allegedly moved his great place to Mhlabathi and what
happened to his kingship which he is said to have been established at Mhlabathi.
Furthermore, paragraph 86.26 paints a picture of a fight taking place between Dosini
and Cira starting when king Ngcwina “attempted to confer the AmaMpondomise
kingship to Cira” which fights allegedly continued for centuries unabated. It is not
clear whether or not those fights were actual wars or just fights and how they ended.
The story unfortunately ends without any attempt to establish that Dosini or any of
his descendants did in fact rule as kings anywhere and the areas which might have
fallen under his kingship during his fights with Cira. If he did reign as king the
respondents do not deal with how and when they lost their kingship in those areas
and how Cira took over. The respondents’ silence on these important issues is
worryingly too loud.
[35] The second respondent makes it clear that she obtained the above historical
narrative by asking older people in the community with some knowledge of the
events. She also mentions that her father and her other relatives told her this history
6 Footnotes have been omitted
21
and she also did her own research reading books and other historical material. While
the difficulties which confronted the second respondent in putting together a cogent
account of what happened are real, they do point to the paucity of credible
information including books that were written around the 13th and 14th century or
other credible means of record keeping that go that far. Even the books that have
been referred to by the respondents were all written a number of centuries later, in
fact during the 19th century and later, which is much later in relation to when these
events occurred.
[36] I do not think that it would be correct, in light of all these difficulties and many
other challenges, to slavishly use the later and current academic writings on these
issues. It is not unimaginable that they might have been infused with common law
reasoning or even customary law that has been infused with common law influence
or even the current understanding of moral rectitude which might not necessarily be
a true reflection of what was happening at the time.
[37] In Bhe7 Ngcobo J alluded to these difficulties when he said:
“[156] The concept of succession in indigenous law must be understood in the context of
indigenous law itself. When dealing with indigenous law every attempt should be
made to avoid the tendency of construing indigenous law concepts in the light of
common law concepts or concepts foreign to indigenous law. There are obvious
dangers in such an approach. These two systems developed in two different
situations, under different cultures and in response to different conditions.”
[38] If one accepts the first respondent’s statement in the letter which he, together
with Mr Madasa, wrote to the Minister of Provincial and Local Government on behalf
of and in their capacities as members or officials of the Mpondomise Royal Council,
7 Bhe and Others v Khayelitsha, Magistrate and Others 2005 (1) SA 580 (CC) at para 156.
22
there were 15 generations of kingships from king Mpondomise to king Mhlontlo or a
period of more than 375 years between those kingships. Some writers estimate the
period to more than 500 years from king Cira to king Mhlontlo.
[39] Whichever number of centuries, years or generations is closest to the period
from king Cira to king Mhlontlo, it is undeniable that it is an unduly long period of
time. Throughout all those generations, the Dosinis did not succeed in getting back
the kingship from the house of Cira. There is no credible evidence or historical
information of it being challenged, at least not successfully, throughout that very long
period by the Dosini descendants in any way whatsoever. All of this happening at a
time when there were no colonialist anywhere near the land of AmaMpondomise or
even the present day South Africa. In other words the kingship moving from king
Ngcwina to Cira and remaining in that house for centuries had nothing to do with the
colonialists.
[40] A submission has been made in the heads of argument filed on behalf of the
applicants that the respondents have not challenged the disinheritance of Dosini and
whether that disinheritance was properly made or not it remains valid until set aside
by a competent authority. It was further submitted that there is no counter
application even in these proceedings for the setting aside of the disinheritance of
Dosini and the transfer of the kingship to the house of Cira. The respondents have
not made any cogent submissions to gainsay the applicants’ submissions on this
point. This makes it difficult to understand the submission by the respondents that
the third respondent “challenge the disinheritance purportedly carried out by king
Ngcwina as having been an uncustomary and unlawful disenfranchisement of the
Great House by king Ngcwina”. It is indeed so that both in the Nhlapo and Tolo
Commissions, and in Matiwane, the issue was formally raised with evidence being
23
given in the context of the respondents claiming the kingship. However, I am not
aware of any steps that the respondents have taken in the past up to this point to
have the disinheritance set aside.
[41] The clearest legal principle I could think of to clarify my point on this issue is
what is commonly referred to in our jurisprudence as the Oudekraal8 principle. In
Kirkland Investments (Pty) Ltd9 Cameron J explained the Oudekraal principle in the
following terms:
“The essential basis of Oudekraal was that invalid administrative action may not simply be
ignored, but may be valid and effectual and may continue to have legal consequences,
until set aside by proper process. The court expressed it thus:
‘For those reasons it is clear, in our view, that the Administrator’s permission
was unlawful and invalid at the outset…. But the question that arises is
what consequences follow from the conclusion that the Administrator acted
unlawfully. Is the permission that was granted by the Administrator simply to
be disregarded as if it had never existed? In other words, was the Cape
Metropolitan Council entitled to disregard the Administrator’s approval and
all its consequences merely because it believed that they were invalid
provided that its belief was correct? In our view, it was not. Until the
Administrator’s approval (and thus also the consequences of the approval)
is set aside by a court in proceedings for judicial review it exists in fact and it
has legal consequences that cannot simply be overlooked. The proper
functioning of a modern State would be considerably compromised if all
administrative acts could be given effect to or ignored depending upon the
view the subject takes of the validity of the act in question. No doubt it is for
this reason that our law has always recognised that even an unlawful
administrative act is capable of producing legally valid consequences for so
long as the unlawful act is not set aside.’
In the present case the Supreme Court of Appeal relied on this passage in concluding
that the department was not entitled simply to ignore the approval. And rightly. In doing
so, the court acted in accordance with the stature Oudekraal has acquired over the last
decade. It has been consistently applied by the Supreme Court of Appeal as well as by
8 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) 9 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC) at paras 101-3
24
this Court. The underlying principle, that public officials may not take the law into their
own hands when seeking to override conduct with which they disagree, has also been
given effect in three cases involving schools’ policies on admission of learners.
The fundamental notion - that official conduct that is vulnerable to challenge may have
legal consequences and may not be ignored until properly set aside – springs deeply
from the rule of law. The courts alone, and not public officials, are arbiters of legality.
As Khampepe J stated in Welkom-
‘(t)he rule of law does not permit an organ of state to reach what may turn out to be a
correct outcome by any means. On the contrary, the rule of law obliges an organ of
state to use the correct legal process’.
For a public official to ignore irregular administrative action on the basis that it is a
nullity amounts to self-help. And it invites a vortex of uncertainty, unpredictability and
irrationality. The clarity and certainty of governmental conduct, on which we all rely in
organising our lives, would be imperilled if irregular or invalid administrative acts could
be ignored because officials consider them invalid.”
[42] Lest I am misunderstood, I am not suggesting that king Ngcwina acted in an
administrative capacity as in the above matter. I am suggesting that he must have
acted as king with the authority of a king at that time. The extent of that authority
and what could be done if he was considered to have acted contrary to customary
law is a different matter. There is no evidence that king Ngcwina’s Royal Family or
council corrected or even protested about his actions nor is there evidence that in
disinheriting Dosini Ngcwina acted unilaterally as the respondents suggest. In fact
there is no evidence of how it was done and whether or not he acted unilaterally
beyond the respondents’ allegations.
[43] These proceedings are not about the review and setting aside of king Ngcwina’s
disinheritance of Dosini and as indicated before, the respondents have not asked
this Court to set aside the disinheritance of Dosini. It follows therefore that, that
disinheritance remains valid until set aside regardless of what one’s view about it
25
might be. Even if there was acceptable evidence to prove that the disinheritance of
Dosini was unlawful, this Court could not set it aside without an application before it.
Points in limine
[44] The respondents have raised some points in limine one of which relates to the
internal remedies provided for in sections 9 and 21 of the Framework Act. Section 21
of the Framework Act reads as follows:
“21 Dispute and claim resolution
(1) (a) Whenever a dispute or claim concerning customary law or customs
arises between or within 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 or claim internally and in accordance with
customs before such dispute or claim may be referred to the
Commission.
(b) If a dispute or claim cannot be resolved in terms of paragraph (a),
subsection (2) applies.
(2) (a) A dispute or claim referred to in subsection (1) that cannot be resolved
as provided for in that subsection must be referred to the relevant
provincial house of traditional leaders, which house must seek to
resolve the dispute or claim in accordance with its internal rules and
procedures.
(b) If a provincial house of traditional leaders is unable to resolve a
dispute or claim as provided for in paragraph (a), the dispute or claim
must be referred to the Premier of the province concerned, who must
resolve the dispute or claim after having consulted-
(i) the parties to the dispute or claim; and
(ii) the provincial house of traditional leaders concerned.
(c) A dispute or claim that cannot be resolved as provided in
paragraphs (a) and (b) must be referred to the Commission.
26
(3) Where a dispute or claim contemplated in subsection (1) has not been
resolved as provided for in this section, the dispute or claim must be
referred to the Commission.”
[45] The internal remedies provided for in section 21 of the Framework Act have
recently received the attention of the Supreme Court of Appeal in Mphephu10. In that
case Mothle AJA, writing for the full court expressed himself as follows:
“[26] It is further common cause that the appellant did not present any evidence or
allegation to the second respondent in terms of s 9(3) of the Framework Act.
The section provides that where there is evidence or an allegation that the
identification of a person referred to in s 1 (in this case the first respondent) was
not done in accordance with customary law, custom or processes, the second
respondent may deal with that evidence or allegation as provided for in s 9(3)(a)
and (b) and must do so in (c) read with s (4) of both Acts. Between 14 August
2010, when the eighth respondent identified the first respondent as the
incumbent to the Throne, and 21 September 2012 when the second respondent
recognised him as the King of Vhavenda, the appellant, then aged above 18 and
assisted by her uncle, had ample opportunity to produce evidence or make an
allegation to the second respondent in support of her claim. She contends that
she was not obligated to do so. Stated otherwise, she contends that she had no
obligation to comply with the Framework Act.
[27] This Court in Netshimbupfe held that a party seeking the kind of relief such as
that sought by the appellant, had to follow the process outlined in the Framework
Act. There is no authority to support the contention by the appellant that she can
at will ignore the dispute resolution provisions of the Framework Act and directly
approach the Court. The Framework Act provides for a designed leadership
dispute resolution process in terms of customary laws and customs. Apart from
the allegation that her uncle unsuccessfully attempted to approach the eighth
respondent prior to and during the meeting of 14 August 2010, to which I will
later return, the appellant in the High Court and this Court manifested an
intention of non-compliance with the provisions of the Framework Act in
10 Mphephu v Mphephu-Ramabulana and Others [2019] 3 All SA 51 (SCA)
27
prosecuting her claim to ascend the Throne. In particular, in regard to lodging a
claim or declaring a dispute with the old or new Commissions, she allowed such
to prescribe. The High Court was thus correct in concluding that the appellant is
non-suited for failure to follow the processes provided for in ss 9, 21 and 25 of
the Framework Act.”11
[46] Firstly, this case is clearly distinguishable from Mphephu in that both the second
applicant and the brother of the second respondent had championed their claims
before the Nhlapo and the Tolo Commissions. Those commissions came to the
conclusion that there was no kingship and therefore no person to be recognised as
king or queen. With all their research and specialist capacities with which the
commissions under the Framework Act are regarded, it is undeniable that this Court
had, on two occasions, to set aside the findings of these commissions for acting
unlawfully and ignoring evidence that was readily available to them. I do not think
that it would be correct in this case to say that internal remedies were not exhausted.
Unless of course, the expectation is that the applicants or the respondents for that
matter, should have again gone back to the commission ad infinitum raising the
same issues.
[47] Secondly, the applicant did not remain supine regarding staking his claim to the
fourth respondent. In fact, the first applicant did what it needed to do in compliance
with the Framework Act as did the third respondent resulting in the fourth respondent
exercising his discretion to refer the matter to the families for reconsideration and
resolution in terms of section 9(3)(c). The appellant in Mphephu did not so much as
to make an allegation to the President, which is not the case in this matter.
11 Ibid at paras 26-7
28
[48] It is clear that the second applicant was properly identified by the first applicant
to the extent that he comes from the Cira lineage and is a direct descendant of
Mhlontlo. In that respect there can be no dispute in my view. What the respondents
dispute is the entitlement to the throne of AmaMpondomise of not only the second
applicant but also king Mhlontlo and all those who reigned before him up to king
Cira, the first king in the Cira lineage. That challenge or allegation of non-
compliance with the customary law prescripts is premised in the disinheritance of
Dosini by his father king Ngcwina. In that regard there is nothing to investigate by
the commission in my view as it is not in dispute that Dosini was disinherited by king
Ngcwina. It is the compliance of king Ngcwina with customary law and custom in
disinheriting Dosini and handing over the kingship to the minor house of Cira in or
around 1300 that is in dispute. Most importantly, the respondents are not contending
that the custom of disinheritance is foreign in the customs of the AmaMpondomise,
something that might require a commission to investigate. The respondents
recognise the custom of disinheritance but contend that it was not complied with or
the disinheritance was not done properly.
[49] In my view, it is not the purpose of the Framework Act to investigate the
propriety with which kingships might have been established in the early stages of the
existing kingships. I have the feeling that doing so would open the proverbial can of
worms, for lack of a better expression, in respect of many other traditional leadership
positions or incumbents in relation the correctness of either the process followed or
even in some cases, violence that might have been used, which might or might not
have been appropriate at the time of the establishment of those traditional
leaderships. It is not difficult to imagine that some of the kingdoms or kingships
might have been established through wars and conquest for example. Is that
29
something that could be investigated in terms of the Framework Act? I do not think
so.
[50] I am emboldened in this view by the decision of the Constitutional Court in
Bapedi Marota Mamone12 where the court said:
“[108] Finally, the Commission’s factual findings included that Kgosi Thulare forcibly
deposed Kgosi Dikotope, becoming the leader of the Bapedi without any prior
entitlement based on the customary rules of succession. Notwithstanding that Kgosi
Thulare became king solely through usurpation, the Commission’s report found – and
this is not disputed by any party – that the Bakgoma and Bakgomana nominated a
timamollo wife for him. That wife’s son, Kgosi Malekutu, became the rightful heir and
successor in title to the kingship of the Bapedi after the death of [Kgosi Thulare].
Here is an undisputed example where the Bakgoma and Bakgomana did nominate a
timamollo wife for a king who acquired his rule through usurpation. And, still more
significantly, the Commission’s finding on this point controverts the main judgment’s
core proposition that usurping kings could not pass on their authority to their heirs. It
also provides ample justification for the Commission’s decision that Kgosi
Sekhukhune I’s kingship competently passed down to his successors.”
[51] In that case the Constitutional court refused to set aside the Commission’s
findings. In so doing the Constitutional Court effectively recognised acquisition of
kingship at that time through force or conquest. This is important because the
respondents do contend that the disinheritance of Dosini was marred by violence
among other things and therefore uncustomary.
[52] The fundamental premise and purpose of the Framework Act is explained in
detail in the same case by Jafta J where he said:
“[8] In 1909, the control of African affairs was vested in the Governor–General who
succeeded the governors of the various colonies. In 1927 the Native Administration
Act was passed. In Western Cape Provincial Government, this Court described this
legislation in these words:
12 Bapedi Marota Mamone v Commission on Traditional Leadership Disputes and Claims and others 2015 (3) BCLR 268 (CC) at para 108.
30
“The Native Administration Act, 38 of 1927 appointed the Governor–General
(later referred to as the State President as supreme chief of all Africans. It
gave him power to govern Africans by proclamation. The powers given to
him were virtually absolute. He could order the removal of an entire African
community from one place to another. The Native Administration Act
became the most powerful tool in the implementation of forced removals of
Africans from the so-called white areas’ into areas reserved for them. These
removals resulted in untold suffering.”
[9] The de-legitimisation of traditional leadership continued under the Administration Act
which was amended and given a new title on a number of occasions. The treatment of
traditional leaders under the Act was described by Professor Bennett in these terms:
“Those [traditional leaders] who opposed the government, no matter what
traditional legitimacy they might have enjoyed could be ousted from office or
passed over in matters of succession. Hence, although the Department of
Native Affairs was generally prepared to make appointments from the ruling
families, where necessary it could depart from the established order of
succession by choosing uncles or younger brothers or by promoting
subordinate headmen. The outcome was a compliant cadre of traditional
leaders who provided the personnel needed to realise an increasingly
unpopular state policy.”13
[53] This is the background in which the Framework Act has to be construed and
understood in my view. It is not necessarily intended to right all the wrongs of the
past, however in some circumstances it does restore what was lost through the
colonial influence. To put it differently, its primary purpose is to correct, as far as
possible, the distortions of colonial aggression. There is no authority for any
submission whose import is that that the Framework Act is intended to check if
customary law was followed in the early stages of settlement and the establishment
of kingships in various places by the indigenous people.
13 Ibid at paras 8-9
31
[54] Just to demonstrate the point that I am trying to make on this issue, I will refer to
what professor Jeff Peires14 had to say:
“Let us, for the sake of progress, ignore the fact that the Commission (not a traditional
institution) in Clause 7.2.5 has arrogated to itself the right to determine what
traditional leaders may or may not do. Let us ponder the implications of its
deification of the hereditary principle in conjunction with its rejection of the 1927
deadline. Taking as our example the three Eastern Cape kingships confirmed by the
Commission, we find the hereditary principle violated in each and every case:
among the amaXhosa, when Tshawe replaced Cirha; among the abaThembu, when
Dhlomo replaced Hlanga; and among the amaMpondo, when Gangata replaced
Qiya. These events happened several centuries ago, but all these deposed factions
have their descendants, and the logic of the Commission’s criteria should surely
have obliged it to restore the kingly status quo as it had been in the Eastern Cape
around the year 1650, that is before the arrival of Van Riebeeck.
…
History by its very nature is a series of unique events, whereas law seeks to define
and articulate the recurrent norms and usages by which any given society tries to
function. Any attempt, therefore, to apply the consistencies of law to the
inconsistencies of history is bound to fail. What would have happened, for example, if
the Commission had applied its version of customary law to the well-known case of
the Zulu kingdom? Ignoring the 1927 cut-off date, as it usually did, the Commission
would have had no difficulty going back to 1840, some years before British colonial
authority was imposed on the colony of Natal. That was the year in which Mpande
fled his homeland to enlist the support of the Voortrekker leader, Andries Pretorius.
In February 1840, the Boers destroyed the army of Dingane and proclaimed Mpande
King of the amaZulu. The Commission should have asked whether that was in
accordance with Zulu customary law.
By the criterion of customary law, all the descendants of Mpande onwards can only
be seen as illegitimate, and the Commission is duty bound to replace Zwelithin with a
more legitimate incumbent. But who? Mpande’s predecessor, according to
customary law, was his brother Dingane. But Dingane had murdered his own
predecessor, Shaka, another clear contravention of Zulu custom. Further research
by the Commission would have revealed that Shaka himself had usurped the
chiefship of his father Senzangakhona, leaving the Commission with no option but to
14 History versus customary law, Commission on Traditional Leadership: Disputes and Claims. SA Crime Quarterly No.49. September 2014 page 17. http://dx.doi.org/10.4314/sacq.v49i1.1
32
identify the most senior descendant of Sigujana, Senzangakhona’s rightful heir, and
to place him on the Zulu throne.”
[55] Even if I am wrong in this regard there are other difficulties with the challenge
based on internal remedies as provided for in the Framework Act. One of those
difficulties is that the respondents’ attorneys did ask the fourth respondent to refer
the matter to a commission.
[56] In their letter dated 4 June 2019 the respondents’ attorneys advised the fourth
respondent that the third respondent has nominated the second respondent for
appointment as heir to the throne. They further told the fourth respondent that there
was a dispute about who the rightful heir was in the following terms:
“It is apparently clear too that there is a dispute herein as to who is the rightful
incumbent as Phahlo Royal Family are recommending one Mr Matiwane. In the
premises we propose that a commission in terms of the act be appointed to enquire
on who could be the rightful heir in terms of customs and tradition of Mpondomise
nation.”
[57] The fourth respondent elected not to appoint a commission but referred the
matter back to the Royal Family for reconsideration and resolution. He also
requested the two families to “resolve the matter internally and nominate one
common heir for the President to recognise as the king of AmaMpondomise.” Not
only did the fourth respondent not appoint a commission as requested by the
respondents, he also elected not to refer the matter to the National House of
Traditional Leaders for its recommendations – as provided for in section 9(3)(a) of
the Framework Act. It was not up to the applicants to refer the matter to the National
House of Traditional Leaders but a prerogative of the fourth respondent.
[58] It appears from the correspondence exchanged between the attorneys of the
applicants and the respondents that an attempt was made by both sides to meet and
33
seek to resolve the matter. There are accusations and counter accusations about
why the meeting did not materialise.
[59] The Framework Act only deals in section 9(4) with a situation in which the royal
family met, reconsidered and succeeded in resolving the matter. It does not deal
with an attempt having been made but the parties fail to meet or having met, the
parties do not agree on the person to recommend to the President. In that respect
the lacuna in the Framework Act is palpable.
[60] The applicants allege in the founding affidavit that the attorneys of both sides
agreed that an application be launched in this Court to determine which one of the
two families is the legitimate royal family for purposes of identifying the rightful heir.
Unfortunately and inexplicably, the respondents only deal with the aspect of urgency
or semi urgency of the matter in their answering affidavit and do not deal with the
alleged agreement about the launching of the application.
[61] Whether or not a genuine attempt was made by the parties to meet and resolve
the matter is beside the point. The fact of the matter is that the Framework Act does
not provide for such situations. The parties’ attorneys seem to have agreed that the
best way to resolve the impasse is to approach this Court for relief. On the facts of
this matter I cannot see why the applicants were not entitled to approach Court for
an appropriate relief. In any event it was also available to the respondents, to do any
of the things they say the applicants should have done. It seems to me that if the
issue of the disinheritance needed to be investigated, it was open to the respondents
to initiate the process and indeed they did so but the fourth respondent did not
consider it necessary to appoint a commission as requested by the respondents.
34
The suggestion that there was anything else which the applicants needed to do
before launching these proceedings is, in my view, misplaced.
[62] Another problem with any possibility of referring the matter to a commission is
that the commission must make recommendations to the President. Assuming that
the commission were to recommend that the President must set aside the
disinheritance of Dosini, which would be a very strange recommendation, the
President has no power to do so in terms of the Act. In my view only a court can set
aside the disinheritance of Dosini. If this is correct I fail to understand how a matter
like the disinheritance can be referred to a commission which can only make a
recommendation to a functionary, the President, who has no power to set aside
anything in terms of the Framework Act. This possibly explains why the fourth
respondent did not see a need in appointing a commission. I cannot fault the fourth
respondent in his approach on this issue on the facts of this matter. After all section
9(3)(a) gives him a discretion to refer a matter to the National House of Traditional
Leaders. He does not have to do so.
[63] The other point in limine is urgency. On the issue of urgency it was submitted
on behalf of the applicants that if there was non-compliance with the Uniform Rules
of Court on urgency, it was open to the respondents to institute rule 30 proceedings
to deal with that non-compliance. At paragraph 56 of the answering affidavit the
second respondent says that she had asked her attorneys to deal with the non-
compliance with urgency rules in terms of rule 30. This was not done. Furthermore,
it is not clear how the shortened time frames with which the respondents elected to
comply without challenging them affected them in their preparations in the final
analysis. No prejudice was pointed out and I cannot see any. This application was
launched on 17 September 2019 and heard on 5 November 2019. I simply cannot
35
see how that period would have been insufficient for proper preparations and filing of
papers to be made.
Requirements for a final interdict
[64] The relief sought by the applicants is in the form of a declarator and a final
interdict. The requirements for a final interdict are trite and have been stated and
restated in our courts for over a century since Setlogelo v Setlogelo15. In that case
the former Chief Justice, Lord De Villiers CJ stated the requirements for a final
interdict thus:
“So far as the merits are concerned the matter is very clear. The requisites for the
right to claim an interdict are well known, a clear right, injury actually committed or
reasonably apprehended and the absence of similar protection by any other ordinary
remedy.”
[65] The respondents have made a submission in their heads of argument which in
essence is that the second respondent is the direct descendent of Dosini who was
disinherited in circumstances which they say marred the appointed successor to king
Ngcwina, king Cira by disaffection, possible abduction or even murder and therefore
king Cira’s kingship was not sacrosanct, so the submission went. As already stated
elsewhere in this judgment, it remains so that king Ngcwina did disinherit Dosini and
did prefer Cira to succeed him for reasons best known to him and his royal family.
Since then king Cira’s lineage has been uninterrupted in their kingship until king
Mhlontlo was removed from his position by the colonialist government.
[66] The second respondents’ claim to be entitled to the queenship of
AmaMpondomise and the third respondent’s right to identify a person are both in the
15 1914 AD 221
36
context of being descendants of Dosini. I could not find evidence that Dosini ever
ruled anywhere nor is there evidence of his descendants ever becoming kings
anywhere since the disinheritance of Dosini round about the 13th century. That
makes the respondents’ submission and claim to be the core ruling family untenable
as it is not substantiated by any facts.
[67] It is common cause that the second applicant is in fact a direct descent of king
Mhlontlo. That gives him a clear right to be identified to succeed his great
grandfather in terms of customary law, to the extent that his claim to the throne of the
kingship of AmaMpondomise is based on him being the descendant of king Mhlontlo.
It follows that a clear right has been established for him to succeed Mhlontlo in terms
of customary law of AmaMpondomise, at least until the disinheritance of Dosini is
successfully challenged by the respondents.
[68] The harm is not only that of the applicants but that of AmaMpondomise as a
whole. These papers make it clear even on the basis of the respondents’ own
submissions that the absence of a leader to lead the nation of AmaMpondomise is a
harm that must be brought to an end as it is a continuing harm. The alternative
remedies that are contained in the Framework Act to the extent that it is submitted
that they should have been exercised, have been exercised in the sense of the
fourth respondent choosing to refer the matter to the families to reconsider and
resolve the matter. They have failed to do so and the Framework Act is silent on
what should happen when the royal family is either unwilling or fail to resolve the
matter.
[69] In Mphephu the Supreme Court of Appeal did point out that despite the
availability of the remedies provided for in the Framework Act the courts remain
37
entitled and in fact are enjoined by the Constitution16 to adjudicate on the issues of
customary law. The jurisdiction of the courts is not automatically ousted by the
failure to exhaust internal remedies provided for in the Framework Act although in an
appropriate case the court may exercise judicial deference in favour of the
commission. In a case like this one in which the parties did go to the commissions
previously, raising two critical points namely, the reinstatement of the kingship and
their recognition as kings, courts should be extremely slow to close their doors to the
litigants by referring them back to the commission, only because it failed to do its job
properly, by failing to use the very expertise and capacity it is renowned for, which
are some of the main reasons for its existence.
[70] This is more so that in this case king Ngcwina disinherited Dosini and preferred
Cira to become a king. Since then the house of Cira has been leading
AmaMpondomise as kings for centuries. There is no internal remedy, in my view,
provided for in the Framework Act that the applicant was, in the circumstances,
obliged to exercise first before coming to this Court. Even if that remedy was
available, the respondents are also equally entitled to exercise it and they have
elected not to do so, at least up to this point. The respondents have also not
expressed an intention to do so. It is the respondents who have an issue with the
lawfulness of the disinheritance of Dosini. It follows that it is the respondents that
ought to take whatever steps necessary to have it set aside by whatever lawful
means. It clearly cannot be that the applicants should have kept quiet and waited for
the respondents to challenge the impugned disinheritance, if they ever decided to do
so.
16 Constitution of the Republic of South Africa, 1996. Section 211 (3) provides: “(3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.”
38
Conclusion
[71] I must point out that even if king Mhlontlo was alive and was reigning as king the
respondents would still be entitled to follow the processes provided for in the
Framework Act to stake their claim for the throne. That said, I cannot see any
obstacle for the respondents or any other person in future establishing that he or she
is entitled to be the king or queen of AmaMpondomise, once the disinheritance is
dealt with. Therefore the recognition of the second applicant cannot possibly affect
the respondents in taking whatever steps necessary to prosecute their claim for the
throne of AmaMpondomise in future.
[72] That this is so appears from the Framework Act itself. Section 10 thereof reads:
“10 Removal of kings or queens
(1) A king or queen may be removed from office on the grounds of-
(a) conviction of an offence with a sentence of imprisonment for more
than 12 months without an option of a fine;
(b) physical incapacity or mental infirmity which, based on acceptable
medical evidence, makes it impossible for the king or queen to
function as such;
(c) wrongful appointment or recognition; or
(d) a transgression of a customary rule or principle that warrants
removal.
(2) Whenever any of the grounds referred to in subsection (1)(a), (b) and (d)
come to the attention of the royal family and the royal family decides to
remove a king or queen, the royal family must, within a reasonable time
and through the relevant customary structure-
(a) inform the President, the Premier of the province concerned and the
Minister, of the particulars of the king or queen to be removed from
office;
(b) furnish reasons for such removal; and
(c) give written confirmation to the President that the Premier of the
province concerned and the Minister have been informed
accordingly.
39
(3) Where it has been decided to remove a king or queen in terms of
subsection (2), the President on the recommendation of the Minister
must-
(a) withdraw the certificate of recognition with effect from the date of
removal;
(b) publish a notice with particulars of the removed king or queen in the
Gazette; and
(c) inform the royal family concerned, and the removed king or queen of
such removal.
(4) Where a king or queen is removed from office, a successor in line with
customs may assume the position, role and responsibilities, subject to
section 9.”
[73] As indicated before the Framework Act is not there to frustrate or make it difficult
for ordinary succession to traditional leadership positions to happen in clear cases
such as the entitlement of the second applicant to succeed king Mhlontlo. It is there
to provide a framework for past colonial distortions to be corrected where they are
found to exist. The recognition of the second applicant and his ascension to the
kingship left vacant by the removal of king Mhlontlo by the colonialist government in
what the court in Mhlontlo described as his vindictive removal does not prevent the
respondents from following all the processes in the Framework Act to deal with the
disinheritance of Dosini and therefore the appointment of Cira and the other kings
even up to the second applicant.
[74] In the result it follows that the applicants must succeed in their application. I
cannot see any reason why the costs should not follow the results.
[75] Therefore, the following order will issue:
1. It is declared that the resolution dated 31 May 2019, annexure “G56” attached to
the founding affidavit, issued by the third respondent in terms of which it identified
40
the second respondent as queen of AmaMpondomise is unlawful and accordingly
set aside.
2. It is declared that the third respondent is not a royal family entitled to identify any
person as king or queen in terms of section 9(1)(a) of the Framework Act 41 of
2003 to assume kingship or queenship of AmaMpondomise which was left vacant
by king Mhlontlo.
3. The first to third respondents are finally interdicted from identifying a person to
assume kingship or queenship and in terms of section 9(1)(a) of the Traditional
leadership and Governance Framework Act 41 of 2003 to assume kingship or
queenship of AmaMpondomise, which position was left vacant by king Mhlontlo.
4. The fifth and fourth respondents are directed to comply with their obligations
provided for in section 9(1)(b) of the Traditional Leadership and Governance
Framework Act 41 of 2003 within 30 days of this order and consider the first
applicant’s resolutions in terms of which the second applicant is identified as the
king of AmaMpondomise.
5. The first, second and third respondents are directed to pay the costs of this
application including costs occasioned by the employment of two counsel where
applicable.
____________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT
41
Appearances:
Counsel for the Applicants: M. GWALA SC
Instructed by: MVUZO NOTYESI INC.
Mthatha
Counsel for the 1st, 2nd & 3rd Respondents: M. MATHAPHUNA with W.N. SIDZUMO
Instructed by: MKATA ATTORNEYS
Mthatha
Heard on: 07 November 2019
Delivered on: 14 January 2020