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IN THE NORTH WEST HIGH COURT

MAHIKENG

Civil Appeal HC 11/2015 In the matter between: TSAJOA ROYAL FAMILY 1ST Appellant DAVID TSAJOA 2ND Appellant and THE PREMIER, NORTH WEST PROVINCE 1ST Respondent THE COMMISSION OF TRADITIONAL LEADERSHIP DISPUTES AND CLAIMS 2ND Respondent MEC: DEPARTMENT OF CORPORATE GORVENANCE AND TRADITIONAL AFFAIRS NORTH WEST PROVINCE 3RD Respondent THE CHAIRPERSON: PROVINCIAL HOUSE OF 4TH Respondent TRADITIONAL LEADERS N.W. PROVINCE LEHLOMELA EMMANUEL LION 5TH Respondent LION ROYAL FAMILY 6TH Respondent BATAUNG BA HLALELE TRIBAL AUTHORITY 7TH Respondent FULL BENCH CIVIL APPEAL HENDRICKS J, KGOELE J, GUTTA J DATE OF HEARING : 26 August 2016 DATE OF JUDGMENT : 02 December 2016 FOR THE APPELLANTS : Advocate Mmolawa FOR THE RESPONDENTS : Mr Moshoana

JUDGMENT

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KGOELE J: A. INTRODUCTION [1] This matter relates to a traditional leadership dispute dating as far

back to 1955. The dispute has resulted in various criminal,

executive and civil litigations. These include an application

brought to court as far back as 1956, criminal proceedings brought

against the predecessors of the current disputants in current

traditional leadership dispute, as well as actions taken by various

Governments to address the dispute also dating back to 1955.

However, the dispute remains smouldering despite all these

actions.

[2] In sequel of these conflicting claims the dispute also served before

the Provincial Commission on Traditional Leadership disputes and

claims (the Second respondent). In compliance with Section

28(11) of the Traditional Leadership and Governance Framework

Amendment Act 23 of 2009 (the Amendment Act), the second

respondent had to deal with all those disputes and claims that

were still pending before the previous Commission as at 1

February 2010. It appears from the records of the second

respondent that the fifth respondent had previously on 28 October

2008 lodged a claim with the second respondent for recognition as

Senior Traditional leader of Bataung Ba Hlalele tribe. Subsequent

to this and during the term of the second respondent on 10 July

2012, the appellant also lodged a claim with the second

respondent for the headmanship of the Bataung Traditional

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Community. On 11 July 2012 the fifth respondent lodged a second

claim for his elevation from the status of a headman to Senior

Traditional Leader of Bataung ba Hlalele Tribe.

[3] As a result of these conflicting claims relating to the same

community, the appellant, the fifth respondent and other interested

parties were invited by the second respondent to a briefing session

during July 2012 which was followed by two public hearings on the

7 November 2012 and 7 February 2013 respectively. During the

hearing the claimants were according to the chairperson of the

second respondent given an opportunity to present their respective

cases or claims and ask each other questions. Members of the

community present were also given an opportunity to give their

inputs on the claims. The second respondent made

recommendations to the first respondent. The first respondent accepted in toto the recommendations of the second respondent.

The practical effect of the acceptance of the first respondent of all

the recommendations of the second respondent was that the

second appellant was accordingly appointed as the headman of

this community and the fifth respondent was deposed. It is this

outcome which led to the current litigation.

B. THE REVIEW APPLICATION

[4] Aggrieved by this, the fifth respondent brought an application to

review and set aside the acceptance of the recommendations of

the second respondent by the first respondent (the main application). The appellant was the fifth respondent in this

application that was brought by the fifth respondent in this matter

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which served before Gura J (the Court a quo). The basis of the

application comprised of several myriad of grounds which were

basically conflated and attacked both the findings of the second

respondent and the decision of the first respondent.

[5] The relevant facts pertinent to the conflicting claims that led to the

second respondent to investigate the traditional leadership dispute

of the appellant and the fifth respondent, together with its findings and recommendations were succinctly summarised by the Court a

quo in its judgment. For the sake of avoiding prolixity and

unnecessary repetition, they will not be repeated in this judgment.

[6] It is important at this stage to set out the prayers/reliefs that were

sought by the fifth respondent’s (applicant then) in the Court a quo.

They serve as the matrix of this appeal. They are couched as

follows:-

“1. That the Respondents are called upon to show cause why the

following orders should not be made:-

1.1 That the acceptance by the First respondent of the North

West Province on 23 July 2013, of the following

recommendations by the Second respondent on Traditional

Disputes and Claims, namely:

1.1.1 That the Sechaba-sa-Bataung Traditional Authority

was only established in 1961;

1.1.2 That John Mota Tsajoa was the first traditional leader

of the Sechaba-sa-Bataung Tribal Authority;

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1.1.3 That the Tsajoa Royal Family is the rightful custodial

of traditional leadership in Sechaba-sa-Bataung tribe;

1.1.4 That Lehlomela Emmanuel Lion be removed from the

headmanship of the Bataung ba Hlalele Tribe,

previously known as the Sechaba-sa-Bataung Tribe

and now to be known as the Maboloka Tribe; and

1.1.5 That the status of headmanship of the Bataung Ba

Hlalele should not be elevated to that of senior

traditional leadership because the claim did not meet

the criteria for Senior Traditional Leadership,

should not be reviewed and set aside on the basis that:

1.2 Gross irregularities were committed in the proceedings, in

that:

(a) The decision and/or recommendation is contrary to

the first respondent’s predecessor in title’s previous

decision;

(b) The first and second respondents were not entitled

and/or at liberty to take the decisions that they did

without the involvement of the Royal Family;

(c) The Second respondent on Traditional Disputes and

Claims (second respondent) and consequently the

First respondent, North West Province, did not apply

its/her mind to the matter properly or at all;

1.3 The decision was not in accordance with the law;

1.4 The decision was so unreasonable that no reasonable

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body, with full knowledge of all the applicable facts

would have reached the same decision, as the Second

respondent on Traditional Disputes and Claims did;

1.5 The decision and recommendation is ambiguous and

incomprehensible.

1.6 That the status of headmanship of the Bataung ba

Hlalele be elevated to that of senior traditional

leadership and that Lehlomela Emmanuel Lion be

recognized as the senior traditional leader of the

Bataung ba Hlalele/Maboloka Tribal Authority.

1.7 That the first respondent’s recognition of the Tsajoa

Royal Family (5threspondent) as a rightful custodian

of traditional leadership in Maboloka village be

reviewed and set aside on the basis that same was

ultra vires the first respondent.

1.8 That the first respondent’s recognition of David

Tsajoa (6threspondent) as headman of the Maboloka

Tribal Authority be reviewed and set aside.

1.9 That the recognition of the Sechaba-sa-Bataung ba

Hlalele tribe by the Governor-General of the Union of

South Africa (the first respondent’s predecessor in

authority) on 23 January 1942, in Executive Council

Minute 66, be restored and upheld.

1.10 That the second applicant’s recognition as the rightful

custodian of the traditional leadership of Sechaba-sa-

Bataung ba Hlalele tribe be restored and upheld.

1.11 That the first applicant’s position as headman of the

Bataung ba Hlalele as previously recognized by the

first respondent on 18 April 2009 be restored and

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upheld.

[7] Only the first and second appellants, (including the second

respondents who were still the second respondent then) opposed

the main application. Amongst others, the appellants in their

opposition contended that the respondents attack the findings and

recommendations of the second respondent but seek no order to

review and set aside same. According to them the failure of the

applicants then to seek such an order rendered their application defective. They urged the Court a quo (as per Gura J) to find that

the application on this basis alone should be dismissed.

[8] The Court a quo delivered a judgment on the 27th January 2015

wherein the following order was made:-

2.1 that the decision of the First respondent be reviewed and set

aside on all aspects except on the elevation of the headman

to that of Senior Traditional Leader;

2.2 On the latter issue (elevation of status of the headman)

judgment was reserved;

2.3 The Court directed that the First respondent, the Second

respondent, fifth and sixth respondents should pay the costs;

C. THE APPEAL

[9] On the 19th February 2015 the appellant filed an application for leave to appeal the judgment of the Court a quo. The Court a quo

delivered a judgment in the application for leave to appeal on the

29th May 2015 granting them leave to appeal to the Full Bench of

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this Division only on one of the eleven grounds set out in the

application for leave to appeal. The appellant aggrieved by this,

applied for a special leave to the Supreme Court of Appeal (SCA) to appeal the remainder of the grounds. The special leave was

granted on the 18th October 2015 by the SCA on all of the

grounds, hence this appeal.

[10] The appellants’ grounds of appeal cover a wide spectrum of issues

on both findings of fact and the law. A thorough analysis of all the

grounds reveals that they are intertwined, repetitive and some are

just an expansion of others. In my view, this multiplicity of grounds

can be succinctly grouped into two. The first relates to a question whether the Court a quo erred in not finding that the findings and

recommendations of the second respondent constituted an

administrative act subject to review in terms of the Promotion of

Administrative Justice Act 3 of 2000 (PAJA). The second relates to whether the Court a quo erred in setting aside the decision of the

first respondent. I now turn to deal with these grounds.

Findings and recommendations of the Second respondent an

administrative act or not

[11] The submissions by the appellants are that the Court a quo ought

to have found that in performing its functions and exercising its

powers, the second respondent was performing a public function in

the public interest and that the performance of its functions and the

exercise of it including the making of its findings and

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recommendations constitute a decision of the second respondent

with legal implications.

[12] The appellants furthermore contend that the Court a quo failed, to

correctly and properly interpret the provisions of the relevant

sections of the Amendment Act in the light of the decision of the

Constitutional Court in Bapedi Maroba Mamone v Second respondent on Traditional Leadership Disputes and Claims and others [2014] ZACC 36. On correct and proper interpretation

of the provisions of the Amendment Act, the Court ought to have

found that:-

12.1 The second respondent was authorised to decide on any

traditional leadership dispute and claim as contemplated in

subsection (2) arising anywhere in the country. Furthermore

that, the alleged failure by the second respondent to conduct

a proper investigation into the claim, constitutes a failure to

perform a statutory function and therefore an administrative

action.

12.2 The findings and recommendations of the second

respondent constitutes a decision of the second respondent

and therefore constitute an administrative decision which the

respondents ought to have sought the review thereof to enable the Court a quo to grant any relief stemming

therefrom.

[13] The appellants further contend that in conducting the investigation

and making a recommendation, the second respondent performed

an administrative act subject to review on its own regardless of

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whether first respondent accepted or disagreed with second

respondent’s recommendation.

[14] To expand on this proposition the appellants contend that the

recommendations of the second respondent have direct external

legal effect. An administrative action is defined in Section 1 of PAJA to be, inter alia, a decision which has direct external legal

effect. The findings and recommendations of the second

respondent on their own have direct external legal effect. The

recommendations of the second respondent and the decision of

the first respondent are separate administrative acts of which each

is competent to be reviewed.

[15] The respondents’ legal representative on the other hand submitted

that the ground is baseless and without merit because in terms of

the Amendment Act the second respondent has powers to

recommend only and not to decide. According to their counsel it

ought to be remembered that the old Section 26 clothed the

second respondent with powers to make a decision. This situation

was altered when the powers were reduced. He referred this

Court to the case of Matiwane v President of the Republic of SA [2014] 2 All SA 419 (ECM).

[16] The respondents’ legal representative furthermore relied heavily

on the case of New Clicks SA (Pty) Ltd v Msimang NO and another, PSSA and other v Minister of Health [2005] 1 All SA 196 (C) where the Full Bench of the High Court held as follows:-

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“[43] To the extent that the applicants seek to have the

recommendations to be reviewed and set aside in terms of the

provisions of the Promotion of Administrative Justice the

applicants’ challenge on this ground cannot succeed for the

simple reason that the conduct of the Committee, culminating in

the recommendations, does not constitute an administrative

action within the meaning of the Promotion of Administrative

Justice Act”.

[17] A further authority that he relied on is the case of the Minister of Health and another v New Clicks SA (Pty) Ltd and others [2006] JOL 15636 (CC) wherein the Constitutional Court per

Chaskalson CJ, writing the majority judgment held:-

“[136] The making of regulations in terms of Section 22G… involves a

two stage process. First, a recommendation by the Pricing

Committee and second a decision by the Minister as to whether

or not to accept the recommendation. [emphasis added]

Further:-

[137] In the circumstances of the present case, to view the two stages

of the process as unrelated, separate and independent

decisions, each on its own having to be subjected to PAJA,

would be to put form over substance.

[18] The respondents’ argument based on the two latter cases quoted

above is that, similarly to this matter, the Amendment Act contemplates a two stage process. First respondent in casu is only

obligated to make a decision on the recommendations. A decision

can either be to accept or reject them. If rejected, all that the

functionary is obliged to do is to give reasons for such rejection.

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[19] Having agreed with the recommendations, their argument

continued, it simply means there is one decision. Like in the New

Clicks matter quoted in paragraph 16 above, ultimately there had

to be one decision made by the first respondent on

recommendation of the second respondent. Accordingly, the

respondent’s legal representative, borrowing from this case

submitted that, to seek to review the recommendations separately

would be to put form over substance. In the light of the authorities

cited above, which authorities are binding on this Court by

application of the stare decisis principle, he finally submitted that

this Court cannot come to a different conclusion on this aspect.

[20] To answer the question whether the second respondent

(Commission) performed an administrative act subject to review on

its own regardless of whether the first respondent accepted or

disagreed with the second respondent’s recommendations the

legal framework under which the second respondent operates had

to be looked at first.

[21] The current Commission which made the recommendations in this

matter was established in terms of Section 22 of the Traditional

Leadership and Governance Frame Work Act 41 of 2003 which

has been subsequently amended by Act 23 of 2009 (The

Amendment Act). Appointment of members of the second

respondent is governed by Section 23 thereof. The deponent to

the second respondent’s answering affidavit in the main application that served before the Court a quo makes it clear in

paragraph 2 thereof that he was appointed as a National

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Chairperson of the National Commission in 2011 and was

furthermore re-assigned as Chairperson of the North West

Provincial Committee on 3 April 2014 (Herein referred to as the Second respondent in this judgment).

[22] Section 26A of the Amendment Act provides for the establishment

of a Provincial Committee to deal with disputes and claims relating

to traditional leadership. In terms of subsection 6 of Section

26A a Provincial Committee makes final recommendations on all

the matters delegated to it in terms of Section 25(6) with a

provision that where a committee is of the view that exceptional

circumstances exist, it may refer the matter to the (National)

Commission for advice.

[23] The old Act, prior to its amendment which came into effect on 1

February 2010, gave the second respondent through Section

25(2)(a) the authority to investigate, either on request or on its own

accord, the disputes tabulated in Section 25(1)(b)(i) – (ix) of the

Act. However in terms of the Amendment Act the second

respondent can only investigate a dispute once it has been lodged

by any person having an interest therein. This is evident from a

reading of section 25(2) and (b) of the Act.

[24] Secondly, as to what constitute administrations action should also

be looked at having regard to PAJA. An administrative action is

defined in Section 1 of PAJA to be, inter alia, a decision which

adversely affects the rights of any person and which had a direct,

external legal effect.

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[25] Thirdly, the Constitution of the Republic of South Africa, (the Constitution) should be looked at to resolve this question. An

organ of the state is defined in Section 239 of the Constitution as

any functionary or institution performing a public function or

exercising a power in terms of any legislation.

[26] From all of the aforementioned legal framework it is clear that the

second respondent is one of the bodies created under the Act.

Amongst others, its function is to investigate and make

recommendations in regard to the disputes and claims arising

between or within traditional communities. It is also clear that the

second respondent has powers to make recommendations of a

final nature on a dispute lodged by any person having an interest

therein. It is furthermore clear that the recommendations of the

second respondent directly affects the rights of a person(s) that

lodged a claim or dispute and has a direct and external legal effect

even before the first respondent decides to accept or reject it. The

second respondent investigated the dispute in this matter and

made recommendations in this regard. The action performed by

the second respondent falls squarely within the definition of

administrative action within the ambit of PAJA. In my view, the

recommendations are not just mere recommendations as

contended by the fifth respondent but amounts to a decision which

is separate and has legal consequences which is subject to and

can be reviewed in terms of PAJA.

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[27] This view find solace in the following paragraph which I quote from the case of New Clicks v Msimang and Others, supra, which was

heavily relied upon by the respondents.

“42. As regards the term “legal effect”, what this may view would

entail is that the administrative action decision must be a lengthy

binding determination of individual rights. In other words, the

recommendations, to constitute an administrative action, must

either establish, change or withdraw existing rights. The

recommendations of the Committee do not have any of these

attributes. The principles of administrative justice apply to

administrative action only and the Committee’s

recommendations fall short of this”. [My own emphasis]

[28] It therefore becomes apparent that the two New Clicks cases

relied upon by the respondents in their submissions are

distinguishable from the facts of this case. They were dealing with

the recommendations of the Pricing Committee and not of a

Commission. It therefore cannot be authority in this matter. On the

contrary, the underlined words in paragraph [26] above, are key

and supports the submission of the appellants.

[29] In dealing with this issue the Court a quo held:-

“Clearly there is no merit in this argument. The findings and

recommendations of the Second respondent have no potential to

adversely affect anyone’s rights as they stand. Only once the

administrative functionary adopts the recommendation is a final

act taken. The effect of the latter decision (e.g. by the First

respondent) has a potential to affect anyone’s rights because it is a

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final determination of an issue (New Clicks SA (Pty) Ltd v

Tshabalala-Msimang and Another NNO 2005 (2) SA 530

(CPD)”.

[30] I do not agree with this finding by the Court a quo. A thorough

reading of the two cases of New Clicks heavily relied upon by the

respondents above, reveals the following:-

• They both deal with the recommendations by the Pricing

Committee;

• The two stage process of making the regulations (the

Pricing Committee’s recommendations and the decision of

the Minister) had to be one decision to which both agree;

• Neither had the power to take a binding decision without

the concurrence of the other;

• It was only if and when agreement was reached, that the

regulations could be made;

• Debate between the Pricing Committee and the Minister

concerning the regulations to be made would not be

inappropriate; and

• The Pricing Committee’s work on the regulations was

continuing and ongoing until the Minister agreed.

[31] As already indicated above, the recommendations in this matter

are of the Commission who does not have to consult with the first

respondent in making its decisions. There is absolutely no room

for debate between the first and second respondents and they

each could take a decision without the concurrence of the other.

As correctly submitted by the appellants, the recommendations of

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the second respondent and the decision of the first respondent are

separate administrative acts of which each is competent to be

reviewed. It is also clear that the decision to recommend lies with

the second respondent whereas the decision to accept the

recommendations and appoint lies with the first respondent. In the

case of Bapedi Marota Mamane v Second respondent on Traditional Leadership Disputes and Claims and Others 2015 (3) BCLR 268 (CC), a case decided in terms of the Amendment

Act, the Constitutional Court dealt with a review of the

recommendations by the second respondent only.

[32] Recognition that the second respondent’s recommendations

constitute administrative action presuppose that until that decision

is set aside by a competent court on review or overturned in an

internal appeal, (if applicable), it remains valid and binding. See:

Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) 222 (SCA) para 26. Whether the second respondent

recommendations were right or wrong is of no consequence. They

exist as a fact until set aside.

[33] In my view, the Court a quo misdirected itself by finding that the

recommendations of the second respondent is not a decision

subject to review because they do not have the potential of

adversely affecting anyone’s rights as they stand. This finding, unfortunately led the Court a quo to embark on an exercise of

analysing the facts that were placed or should have been placed

before the second respondent which the second respondent dealt with or should have in arriving at its decision. This, the Court a quo

did with the aim of reviewing the acceptance by the first

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respondent of the second respondent’s recommendations. This

exercise was in my view not the correct approach to the matter.

Whether the Court a quo erred in setting aside the decision of the Premier (First respondent)

[34] It is important to indicate at the onset that this heading

encapsulates all the other remaining grounds that the appellants

relied on as it will become clearer below. In the amended notice of

motion dated 20 May 2014, as well as the accompanying founding

and supplementary affidavits (of the respondents currently) that served before the Court a quo, the respondents in paragraph 1 of

its notice of motion seek an order that:-

“the acceptance by the First respondent of the North West Province

on the 23 July 2013 of the recommendations by the Second

respondent on Traditional Disputes and claims be reviewed and set

aside”.

[35] If one looks at the grounds in support of this prayer, the

respondents in essence attacks the findings and recommendations

of the second respondent. As correctly submitted by the

appellants, they seek no order to review and set aside same as a

separate prayer. What the respondents did was to conflate the

decision of the first respondent with the recommendations and

treated them as one. This is borne by the fact that respondents as

applicants then, continuously in their grounds that supported their

prayer for review referred to the decision of the Premier and/or

recommendations. In addition to the above, it appears that the

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respondents placed before the Court a quo the information that

were or ought to have been placed before the second respondent.

[36] By taking this approach, the respondents faced a fundamental

insurmountable difficulty. This approach unfortunately gives an

impression that the respondents’ understanding is that the first

respondent should in addition to the work done by the second

respondent conduct his own investigations as to the disputes of

the claimants. This cannot be the case if the Amended Act is

considered carefully. The Amended Act only conferred this power

to the second respondent.

[37] It furthermore appears that respondents seems to suggest that

regardless of the findings and recommendations of the second

respondent, the first respondent should have ignored same and

taken a decision outside of the process prescribed by law. The

true state of affairs is that the Amendment Act enjoined the first

respondent through the second respondent (the Commission) to

investigate the dispute, make findings and recommendations to

enable him to make a determination afterwards. By this I do not

necessarily mean that the first respondent should have or must

just accept the recommendations in his determination. The

Amendment Act enjoined him to reject the recommendation if he

deems appropriate and provide reasons therefor, and furthermore

prescribed how the process will thereafter unfold.

[38] Lastly, this stance appears to suggest that the first respondent was

supposed to accept the representations the respondents made to

the second respondent and ignore the recommendations

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submitted by the second respondent and make a finding in their

favour. Unfortunately this expectation loses sight of the fact that in

terms of the Section 25 of the Amendment Act, the first respondent

takes a decision based on the findings and recommendations of

the second respondent. Therefore, the material placed before the

first respondent is the findings and recommendations of the

second respondent. When the first respondent has considered the

material placed before him and has followed the procedures

prescribed for the consideration of the said findings and

recommendations, the first respondent would have acted lawfully

and rationally.

[39] The critical importance of the review of the findings and

recommendations of the second respondent lies in the fact that the

impugned decision of the first respondent is wholly based on the

said findings and recommendations, and to the extent that such

findings and recommendations are not reviewed and set aside,

they stand as such, regardless of the criticism levelled against the

second respondent which is manifest in the application brought by the respondent and the judgment of the Court a quo.

[40] A failure to review and set aside the findings and

recommendations of the second respondent entails that there is no

findings of unlawfulness or any irregularity on the part of the

second respondent. Furthermore, to the extent that the first

respondent relied wholly and solely on those findings and

recommendations, he could not have acted unlawfully or in an

irregular manner if one takes into consideration the provisions of

the Amendment Act as to how he must deal with the

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recommendations. It is further not required of the first respondent

to afford any party to the dispute or claim an opportunity to make

representation prior to him taking the decision.

[41] In so far as to whether the decision of the first respondent was

unreasonable or not, it is trite that the test in a review is primarily

concerned with the decision making process and the court must

therefore assess whether there has been an infringement of the

right to a lawful, reasonable and procedurally fair administrative

action. A review is not available where the decision maker had his

or her facts correct.

[42] In this matter, a claim was lodged with the second respondent

which investigated the claim, made findings and recommendations

to the first respondent. The first respondent was required either to

accept or reject the recommendations of the second respondent, in

which case the first respondent was either required to appoint the

person recommended or record his reasons for not accepting the

recommendations. The only material placed before the first

respondent in taking the decision was the findings and

recommendations of the second respondent. The first respondent

did not consider any other material nor did he conduct his own

investigations. The first respondent in accepting the

recommendations was guided by the work of a specialist body on

matters of this nature, the second respondent.

[43] In my view, the first respondent did follow the correct methodology

in considering the findings and recommendations of the second

respondent. The second appellant and the fifth respondent had

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the opportunity to place information before the second respondent

for investigation and determination and not before the first

respondent. For the sake of emphasizing this point, I repeat that

the power to investigate the claim and to make a determination is

vested in the second respondent and not the first respondent.

What is of importance is that the first respondent applied such

recommendations and treated them as those coming from a

specialist body. In my view, when the contents of the report of the

second respondent that served before the first respondent is

considered cumulatively and objectively, there is not even a single

indication that the first respondent failed to establish any facts, or

take into account any irrelevant consideration or ignored any

relevant facts placed before him in taking the decision. There is

therefore in my view no irregularity committed by the first

respondent nor did he act unlawfully or irrationally.

[44] In my view, the Court a quo erred in setting aside the decision of

the first respondent despite not having found that the first

respondent committed an irregularity or that he have acted

unlawfully in terms of the provisions of the Amendment Act. The court a quo failed, to properly apply the correct test in review

proceedings in terms of Rule 53 of the Uniform Rules of Court.

The Court ought to have concerned itself with whether:-

(a) The first respondent had the facts correct when

accepting the recommendation of the second

respondent;

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(b) The first respondent committed an infringement of the

right of the applicants to a lawful, reasonable and

procedurally fair administration action.

[45] The Court a quo in its judgment embarked on making findings that

relates to the findings and recommendations of the second

respondent in an attempt, to review the decision of the first respondent. However the Court a quo was not asked to make any

order on the findings and recommendations of the second respondent. The Court a quo instead analysed the facts that were

in front of the second respondent and or supposed to have been

placed before the second respondent. Unfortunately this analysis

served as the matrix of setting aside the first respondent’s

decision. The effect hereof is that the findings and

recommendations of the second respondent were reviewed by the Court a quo in a situation where it was not called upon to do so and

went even further to substitute the second respondent’s decision

with its own decision.

[46] The mere fact that the court a quo made findings against the

second respondent does not in law translate in wrongdoing on the

part of the first respondent. The implication of the judgment of the

court a quo is that the finding against the second respondent

automatically disqualifies the decision of the first respondent. This

is incorrect. The findings and recommendations of the second

respondent does not automatically translate into the fact of a

material error of fact or law against the first respondent, unless he

in his or her decision is found to have acted irrationally in the

decision he took.

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[47] As already alluded to above, the Court a quo erred to consider the

facts of this matter and usurp the function of the second

respondent as it found in paragraph [85] of its judgment that:-

“…no sufficient evidence was adduced by the fifth and the sixth

respondents justifying the allegation that Phillemon Tsajoa’s

deposition by Bophuthatswana was politically motivated”.

[48] Paragraph [80] of that judgment wherein the Court a quo remarked

as follows also demonstrates usurpation by the Court a quo of the

function of the second respondent.

“In my view therefore, the Commission either ignored some

relevant facts and, or, paid insufficient weight to material

information. Had it properly applied its mind to all the facts it

would have been persuaded to find that the first headman of this

tribe was Solomon Lion. Once it had made this finding it would

then conclude that the relevant royal family in 1953 (when Lion

was deposed) was the Lion Royal Family. In terms of the custom

of this tribe, a male from the Lion family would succeed Solomon

Lion. The Commission would have found that John T. Tsajoa was

not supposed to have been the headman or anyone who succeeds

through him.”

Similar findings can also be found in paragraphs 71, 74 and 78 of the judgment of the Court a quo.

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[49] In the case of Bapedi Marota Mamone v The Second respondent of Traditional Leadership Dispute and Claiims and Others – Case No. 260/13 SCA it was held that :-

“The setting of the review standard does not mean that the Court can

or should substitute their opinion as to what is appropriate for the

opinions of those in whom power to make administrative action has

been vested. As long as the purpose sought to be achieved by the

exercise of public power is within the authority of the functionary and as

long as the functionary’s decision, viewed objectively, is rational, a

Court cannot interpret with the decision simply because it disagreed

with it…”

[50] In Bapedi Marota Mamone, supra, the following was said which I

find apposite in this matter:-

“[78] Before considering the factual basis for the applicant’s

contentions, it is necessary to sound a note of caution. Our right to just

administrative action 39 and PAJA, the legislation enacted to give

effect to that right,40 require rigorous scrutiny of And this is particularly

so for rationality review under PAJA. Hoexter notes that—

“[a] crucial feature [of rationality review under PAJA] is that it demands merely a

rational connection – not perfect or ideal rationality. In a different context Davis J has

described a rational connection test of this sort as ‘relatively deferential’ because it

calls for ‘rationality and justification rather than the substitution of the Court’s opinion

for that of the tribunal on the basis that it finds the decision . . . substantively

incorrect’.”42 (Footnotes omitted.)

[79] A level of deference is necessary – and this is especially the case

where matters fall within the special expertise of a particular decision-

making body. We should, as this Court counselled in Bato Star, treat

the decisions of administrative bodies with “appropriate respect” and

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“give due weight to findings of fact . . . made by those with special

expertise and experience”.43

[80] This has resonance here. The Second respondent is a specialist

body constituted by experts “who are knowledgeable regarding

customs and the institution of traditional leadership”.

44 As this Court held in Nxumalo, it is appropriate to treat its decisions

with some deference.45 When considering a claim, the Second

respondent is required by section 25(3)(a) of the Framework Act to—

“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.”

Notably, this provision tasks the Second respondent not only with applying the

relevant customary law to the case before it, but also with determining what that law

was at the relevant time. This latter question depends primarily on historical and

social facts, which the Second respondent must establish through evidence led

before it and its own investigation.

[81] In this case that investigation ran over two years. It covered a

wealth of historical material, which this Court cannot easily assess. It

also included a series of hearings, in which the applicant participated

extensively. First, the Second respondent conducted separate hearings

for the Sekhukhune and Mamone royal families, whose representatives

gave testimony under oath and referred the Second respondent to

supplementary research material. After these hearings the Second

respondent conducted its own research, on the basis of which it drafted

preliminary statements which it put to both royal families. The

statements were about whether Kgoši Sekhukhune I successfully

challenged Kgoši Mampuru II in 1861 and whether, after returning to

kill Kgoši Sekhukhune I, Kgoši Mampuru II ascended the throne. Both

royal families commented on these in writing. Thereafter they attended

a joint hearing where their testimony and arguments were again heard.

The Second respondent’s 40-page report was released some months

later.

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[51] A case that clearly demonstrate that the recommendations of the

second respondent and the decision of the first respondent are

separate, is the case of Nxumalo v President of RSA and Others 2014 (12) BCLR 1457 (CC). Paragraph [9] thereof reveals

that the review application in that matter concerned both. It is

couched as follow:-

“The applicant brought an application in the North Gauteng High Court to have the President’s decision as well as the Second respondent’s decision reviewed and set aside. Tuchten J dismissed the application. The applicant unsuccessfully applied to the High Court for leave to appeal. He then petitioned the Supreme Court of Appeal for leave to appeal. His petition was lodged out of time. Accordingly, he lodged an application for condonation. The Supreme Court of Appeal dismissed the application for condonation on the basis that there were no reasonable prospects of success for an appeal” [My own emphasis]

[52] Paragraphs 17,18,19,20 and 21 of the Nxumalo judgment, supra,

demonstrate that up until the second respondent’s decision is set

aside it remains valid. Further that, a decision can be made to set

aside a decision of one functionary only, and the other remains.

This signifies that these are two distinct decisions which remain

valid until each is set aside. Lastly, the principle of difference was

also emphasized. It is best to quote these paragraphs to

emphasise this:-

“17 What should this Court do about the Second respondent’s

decision? In his application in the High Court, the applicant also sought to have the Second respondent’s decision reviewed and set aside. Before us he also seeks to appeal against that part of the decision of the High Court that related to the Second respondent’s decision. In Sigcau, where the applicant had sought to have not only the President’s notice set aside but also the Second respondent’s decision, we did not set aside the

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Second respondent’s decision. The order of the High Court dismissing the applicant’s review and set aside.

18 It seems to me that the result was not only that in Sigcau the

Second respondent’s decision still stood but also that the applicant’s review application in respect of the Second respondent’s decision remained undecided and, therefore, pending before the High Court. However, during oral argument in Sigcau, Counsel for the applicant informed us that the applicant would be content with an order merely setting aside the President’s notices. The reasons we gave related to the President’s decision only. Our judgment gave no reasons for setting aside the High Court’s order in so far as it dismissed the applicant’s application in Sigcau to have the Second respondent’s decision reviewed and set aside.

19. What should this Court do with the application for leave to

appeal against the High Court’s Order dismissing the applicant’s application to have the decision of the Second respondent reviewed and set aside? It appears to me that we should deal with it. Since leave to appeal against the High Court’s order concerning the President’s decision is to be granted, leave to appeal against the High Court’s decision concerning the Second respondent’s decision is also to be granted. It is in the interests of justice that the matters be dealt with in this way.

20. Broadly speaking, there are two bases upon which the applicant

attacks the judgment of the High Court concerning the Second respondent’s dismissal of his claim. The one is that the High Court was wrong to show deference to the decision of the Second respondent. The other is that the High Court should have found that the Second respondent had erred in its conclusion that the kingdom of amaShangana had disintegrated or had been destroyed around 1894 or 1897 and, certainly, long before the date of 1 September 1927.

21. There is no merit in the applicant’s criticisms of the High Court’s

approach in showing deference to the Second respondent. The Second respondent was a specialist body established by an Act of Parliament to deal with a special category of disputes affecting a large section of society. It was required to apply customary law in adjudicating those disputes. Members of the Second respondent were required to have expertise in traditions and customs. The High Court cannot be criticised for its

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approach demonstrates that up until the Second respondent’s decision is set aside it remain valid, further that a decision can be made to set a decision of one functionary only, and the other remains.

D. CONCLUSION

[53] I therefore come to the conclusion that the Court a quo erred in

finding that the findings and recommendations of the second

respondent have no potential to adversely affect anyone’s rights as

they stand and that there was no merit in an argument that the

applicants should have sought an order reviewing and setting

aside the findings and recommendations of the second

respondent.

[54] The findings and recommendations of the second respondent

constituted a decision of the second respondent and therefore

constitute an administrative decision which the respondents in their

application before Gura J. ought to have sought a review of same

specifically to enable the Court to grant any such relief.

[55] The Court a quo ought to have applied the correct test and found

as follows:-

a) The decision being impunged is that of the first respondent

and not of the second respondent in respect of whom no

relief was sought;

b) The power to investigate the claim and to make a

determination vested in the second respondent and not the

first respondent;

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c) The parties to the dispute had the responsibility to place

information before the second respondent for investigation

and determination and not before the first respondent;

d) The means followed by the first respondent to reach the

decision impugned involved a consideration of the findings

and recommendation of the second respondent including the

presentation made to the first respondent;

e) The first respondent applied the said findings and

recommendations and treated such findings and

recommendation of the second respondent as a specialist

body with appropriate respect;

f) The first respondent did not fail to establish any facts or take

into account any irrelevant consideration or ignored any

relevant facts placed before him in taking the decision.

[56] The Court a quo substituted the decision of the second respondent

when it was not empowered to do so, and in the circumstances

where the respondents did not even attempt to allege that

exceptional circumstances exist for the Court to do so.

E. THE ORDER

[57] Consequently the following order is made:- 57.1 The appeal is upheld;

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57.2 The order of the Court a quo that the decision of the first

respondent be reviewed and set aside on all aspects except

on the elevation of the headman to that of Senior Traditional

Leader is set aside and is replaced by the following order:-

“The application to review and set aside the first respondent’s decision is dismissed with costs”

57.3 The fifth, sixth and seventh respondents are ordered to pay

the costs of this appeal, jointly and severally, the one paying

the other to be absolved.

________________ A M KGOELE JUDGE OF THE HIGH COURT

I agree

________________ R D HENDRICKS JUDGE OF THE HIGH COURT

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I agree N. GUTTA JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPELLANT : Kekana Ramorei Inc. 252 D.P. Kgotleng Street Montshioa 2737 FOR THE RESPONDENT : State Attorney 1st Floor East Gallery Mega City Complex MMABATHO 2735