THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable/Not Reportable
Case No: 612/2016
In the matter between:

WEZIZWE FEZIWE SIGCAU

FIRST APPELLANT
LOMBEKISO MAKHOSATSINI
MASOBHUZA SIGCAU

SECOND APPELLANT
and
MINISTER OF COOPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS

FIRST RESPONDENT

PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA

SECOND RESPONDENT

THE COMMISSION ON TRADITIONAL
LEADERSHIP DISPUTES AND CLAIMS

THIRD RESPONDENT

Neutral Citation:
Sigcau v Minister of Cooperative Governance and Traditional
Affairs (612/2016) [2017] ZASCA 80 (7 June 2017).
Coram:

Shongwe ADP, Navsa, Zondi, Dambuza JJA and Gorven AJA
Heard:

17 May 2017
Delivered:

7 June 2017
Summary: Customary law: decision of the Commission on Traditional Leadership
Disputes: whether implementation of the decision in terms of s 26(2) of the
Traditional Leadership and Governance Framework Act 41 of 2003 (Old Act)
required prior consultation with Royal Family under s 9 of the Old Act: whether
implementation of the decision required compliance with provisions of s 10(1)(c) of
the Old Act: implementation of the decision of the Commission did not require
consultation in terms of s 9 of the Old Act: deeming provision under s 28 of the Old
Act and s 26 of the New Act did not bestow status of king where the Commission did
not uphold claim to kingship: provisions of s 10(1)(c) were not applicable.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from the Gauteng Division of the High Court, Pretoria (Murphy J sitting
as court of first instance).
The appeal is dismissed.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Dambuza JA (Shongwe ADP, Navsa and Zondi JJA and Gorven AJA
concurring):

[1] The main issue in this appeal is the correct procedure to be followed by the
second respondent, the President of the Republic of South Africa (the President) in
implementing a decision of the third respondent, the Commission on Traditional
Leadership Disputes and Claims (the Commission), made in terms of s 26(2)(a) of
the Traditional Leadership and Governance Framework Act 41 of 2003 (the Old Act)1
on a disputed kingship. The two appellants, Wezizwe Feziwe Sigcau (Wezizwe) and
Lombekiso Makhosatsini Masobhuza Sigcau (Masobhuza) contend that, before
implementing the decision of the Commission on the disputed kingship of the
amaMpondo aseQaukeni, the President must consult the royal family as prescribed
in s 9 of the Old Act.

[2] The appeal is against the order of the Gauteng Division of the High Court,
Pretoria (Murphy J) (the high court), declaring that s 26(2)(a) read with ss 9 and 10
of the Old Act does not ‗permit, require or empower‘ the President to follow a
process of consultation with the royal family of amaMpondo aseQaukeni before
implementing the decision of the Commission. The high court also declared that the
aforesaid provisions only require the President to issue a certificate of recognition to
Zanozuko Telovuyo Sigcau (Zanozuko) to ‗publicise‘ the decision of the Commission

1 Since its extensive amendment by the Traditional Leadership and Governance Framework Act 23 of
2009 this Act has been referred to as the Old Act (eg in the proceedings before the high court. See
also Sigcau v President of the Republic of South Africa & others 2013 (9) BCLR 1091 (CC)).

as contemplated in s 9(2) of the Old Act. The appeal is with the leave of the high
court. For the sake of convenience and clarity, I will refer to the members of the royal
family by their first names as they all carry the same last name. No disrespect is
intended.

[3] The dispute is set against the backdrop of contestations in relation to various
kingships by traditional leaders around the country, emanating from manipulation of
traditional systems by colonial and apartheid governments. They exploited the
institutions of traditional leadership so as to control Africans and traditional leaders
and to compel dependence on the State for their authority and financial security.
Those who were perceived as uncooperative were replaced with conformists. By the
dawn of democracy many illegitimate leaders were entrenched as traditional leaders
of state exploited communities.2

[4] In an attempt to resolve these distortions Parliament, in 2004, acting in terms
of s 22 of the Old Act, established the Commission which comprised various experts
on customs and institutions of traditional leadership.3 It had a lifespan of five years.4
Its tasks included investigation and resolution of traditional leadership claims and
disputes within the Republic. In terms of s 28(7) of the Old Act it had to investigate
the positions of paramountcies and paramount chiefs that had been established and
recognised and were still in existence when that Act came into effect. It had authority
to investigate and determine, amongst other things, whether the paramountcies
qualified to be recognised as kingships, and to determine the identity of the
legitimate kings in respect of the kingships.5 In terms of s 26(2), the decision of the
Commission had to be conveyed to the President within two weeks of it being taken,

2 In s 5.10 of the White Paper which preceded the establishment of the Commission this is explained
as follows: ‗[Colonial] legislation transferred powers to identify, appoint and/or recognise and depose
traditional leaders from traditional institutions to the [colonial] government. In the process the role of
customary institutions in the application of customary rules and procedures… were substantially
reduced. In some instances, not only [were] illegitimate traditional leaders and authority structures
appointed or established. But other legitimate traditional leaders were removed and legitimate
authority disestablished.‘ See Jeff Peires ‗History v Customary law: Commission on Traditional
Leadership – Disputes and Claims‘ (2014) 49 South African Crime Quarterly 1 at 14.
3 Section 22(1) of the old Act provides that, ‗[t]here is hereby established a commission known as the
Commission on Traditional Leadership Disputes and Claims.‘
In terms of s 23(1) ‗[t]he President must appoint not more than 15 persons as members of the
Commission who are knowledgeable regarding customs and the institution of traditional leadership.‘
4 In terms of s 25(5) of the Act, this period could be extended by the President.
5 Section 25(2)(a)(i) of the Old Act.

for immediate implementation in accordance with s 9 or s 10, where the position of a
king or queen was affected by such a decision.

[5] On 22 October 2009 the life of the Commission was extended, in terms of
s 25(5) of the Old Act, to 31 January 2010. On 25 January 2010 the Old Act was
amended extensively in terms of the Traditional Leadership and Governance
Framework Amendment Act 23 of 2009 (the New Act). Of significance, under the
New Act, the powers of the Commission regarding resolution of traditional leadership
disputes and claims were altered so that it could only make recommendations on the
resolution of the disputes, as opposed to making decisions in respect thereof.6 The
New Act provides that the recommendation of the Commission must be conveyed to
the President within two weeks (of having been made) for him to make a decision
thereon within 60 days.7 A further relevant change brought about by the New Act is a
deeming provision, s 28(8), in terms of which an incumbent paramount chief, at the
time of coming into effect of the New Act, is deemed to be a king subject to the
investigation and recommendation of the Commission in terms of s 25(2).

[6] In April 2008 the Commission affirmed the kingship of amaMpondo
aseQaukeni, and, almost two years thereafter, on 21 January 2010 it decided that
Zanozuko was the rightful king in respect of that kingship. On the same day the
Commission communicated its decision to the President. However, only on 3
November 2010 did the President purport to recognise the amaMpondo kingship and
Zanozuko as the legitimate king. The purported recognition was done in terms of
s 28(8) of the New Act.

[7] The decision of the Commission followed its investigation into a claim made
by Zanozuko to the kingship of amaMpondo aseQaukeni. At the time his brother
Mpondombini Justice Sigcawu (Mpondombini) was the incumbent paramount chief of
amaMpondo aseQaukeni. Briefly, the decision of the Commission was based on the
following tenets of history and custom. The customary succession of amaMpondo

6 See sections 25(2) and 26(1) of the New Act. For instance, s 25(2)(a)(i) of the New Act provides that
[t]he Commission has authority to investigate and make recommendations on a case where there is
doubt as to whether a kingship … was established in accordance with customary law and customs.‘
(my emphasis) Section 26 thereof deals with the recommendations of Commission.
7 Section 26(2) and (3).

has always been governed by the principle of male primogeniture. In its pure form,
the custom was that the leader of the amaMpondo,8 referred to as the ‗ikumnkani,9
and later as the ‗paramount chief‘‘ would marry several wives: the ‗great wife‘
(undlunkulu), whose son would be the preferred successor, the ‗right hand wife‘
(ikunene), being the ‗first wife‘, whose son would not succeed the father, but could
establish a semi-independent community, and the consorts (amaqadi (singular
‗iqadi‘)) who supported the two main wives and whose eldest sons would step in as a
successor if the great wife had no male issue.

[8] In this instance, Mandlonke, Botha, Nelson, and four other sons were born of
the regent Marhelane Sigcau. Mandlonke succeeded Marhelane. In 1937
Mandlonke10 died without a male issue, leaving his brothers Botha from the right
hand house and Nelson from the iqadi house. The government of the day favoured
Botha over Nelson, and, contrary to custom, Botha was appointed as the paramount
chief of the amaMpondo aseQaukeni, in terms of the Black Administration Act 28 of
1927 and, later, in terms of ss 45 and 73 of the Transkei Constitution Act 48 of 1963.
He was succeeded by his son Mpondombini, the incumbent regent at the time of
establishment of the Commission. Nelson‘s grandson, Zanozuko,11 lodged a claim to
the throne with the Commission. The Commission found that the appointment of
Botha had been irregular and not in accordance with the law and customs of
amaMpondo; hence the decision that the claimant, Zanozuko, was the rightful
successor to the throne of amaMpondo aseQaukeni.

[9] Mpondombini brought court proceedings, challenging the decision of the
Commission and the President‘s recognition of Zanuzuko. He contended that the
President should have consulted the royal family before implementing the decision of
the Commission as prescribed in ss 9 and 10 of the Old Act. Those proceedings

8 For a brief history of the amaMpondo lineage, see Sigcau v President of the Republic of South Africa
and others (Centre for Law and Society as amicus curiae) [2013] ZACC 18; 2013 (9) BCLR 1091 (CC)
paras 1-3.
9 Loosely translated, an ‗ikumnkani‘ means a ‗chief‘.
10 Whose lineage is traced back to the great regent Faku.
11 Nelson‘s son was Zwelidumile, Zanozuko‘s father.

ultimately served before the Constitutional Court.12 Mpondombini died on 27 March
2013, before the matter was heard by the Constitutional Court.

[10] The Constitutional Court did not make any ruling on the challenge to the
decision of the Commission. It only found that, because the proceedings and the
decision of the Commission had been made in terms of the Old Act, the President
should have appointed Zanozuko in terms of that Act. Instead the notice of
recognition read:
‗In terms of section 28(8) read with section 2A of the Traditional Leadership and Governance
Framework Act, 2003 (Act No 41 of 2003) (the Act), I Jacob Gedleyithlekisa Zuma, President
of the Republic of South Africa, hereby recognise the following Kingships and Kings.‘
The Old Act contained neither s 28(8) nor s 2A. The Constitutional Court concluded
that the President had purported to exercise powers not conferred on him by the
provisions of the Old Act. It accordingly set aside the appointment on that basis.

[11] Mpondombini‘s widow, the second appellant, (Masobhuza) adopted the
stance that the decision of the Constitutional Court vindicated the position of her late
husband as the ikumnkani of amaMpondo aseQaukeni. She then took up position as
the regent. In that capacity she nominated her daughter, the first appellant,
(Wezizwe) as the queen. Following a meeting of the members of Mpondombini‘s
extended family (the broad extended royal family) held on 13 October 2014,
correspondence was exchanged between that family and the office of the President,
calling upon the President to recognise Wezizwe, in terms s 9 of the Old Act, as the
queen of amaMpondo.

[12] The first respondent (the Minister of Cooperative Governance and Traditional
Affairs), the President, and the Commission (the respondents) instituted proceedings
in the high court asserting their view that the decision of the Commission remained
valid and seeking a declaratory order on its implementation. In essence, these
proceedings, it was said, were aimed at seeking clarity on how the President should
implement the decision of the Commission.

12 See Sigcau v President of the Republic of South Africa and others (Centre for Law and Society as
amicus curiae) [2013] ZACC 18; 2013 (9) BCLR 1091 (CC).

[13] Both in the high court and before us the parties were in agreement that the
decision of the Commission had to be implemented in terms of the provisions of
s 26(2)(a) of the Old Act. The issue was the extent to which the provisions of ss 9
and 10 of that Act were applicable in the implementation process. The appellants
insisted that the President was obliged to consult the royal family prior to
implementing the decision of the Commission, as provided for in s 9 of the Old Act.
Section 26(2) of the Old Act provided that:
‗(2)  A decision of the Commission must, within two weeks of the decision being taken, be
conveyed to-
(a)
the President for immediate implementation in accordance with section 9 or 10 where
the position of a king or queen is affected by such a decision; and
(b)
the relevant provincial government and any other relevant functionary which must
immediately implement the decision of the Commission in accordance with applicable
provincial legislation in so far as the implementation of the decision does not relate to the
recognition or removal of a king or queen in terms of section 9 or 10.‘

[14] In the relevant part s 9 provides:
‗Recognition of kings and queens’
9.(1) Whenever the position of a king or queen is to be filled, the following process must be
followed:
(a)
The royal family must, within reasonable time after the need arises for the position of
a king or a queen to be filled, and with due regard to applicable customary law-
(i)
Identify a person who qualifies in terms of customary law to assume the position of a
king or a queen, as the case may be, after taking into account whether any of the grounds
referred to in section 10(1)(a), (b) and (d) apply to that person; and
(ii)
through the relevant customary structure-
(aa)
inform the President, the Premier of the province concerned and the Minister, of the
particulars of the person so identified to fill the position of a king or a queen;
(bb) provide the President with the reasons for identification of that person as a king or a
queen; and
(cc) give written confirmation to the President that the Premier of the province concerned
and the Minister have been informed accordingly; and
(b)
The President must, subject to subsection (3), recognise a person so identified in
terms of paragraph (a)(i) as a king or a queen taking into account –
(i) the need to establish uniformity in the Republic in respect of the status afforded to a king
or queen;

(ii) whether a recognised kingship exists-
(aa) that comprises the areas of jurisdiction of a substantial number of senior traditional
leaders that fall under the authority of such king or queen;
(bb) in terms of which the king or queen is regarded and recognised in terms of customary
law and customs as a traditional leader of higher status than the senior traditional leaders
referred to in subparagraph (aa); and
(cc) where the king or queen has a customary structure to represent the traditional councils
and senior traditional leaders that fall under the authority of the king or queen; and
(iii) the functions that will be performed by the king or queen.
(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.‘13
(3)
Where there is evidence on an allegation that the identification of a person referred to
in subsection (1) was not done in accordance with customary law, customs or processes, the
President-
(a)
may refer the matter to the National House of Traditional Leaders for its
recommendation; o
(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.‘

[15] Related to the main issue was the question of non-joinder of the royal family
of amaMpondo who, it was contended by the appellants, were vested, under
customary law, with the power to identify and appoint a traditional leader for the
community. The appellants also took issue with the respondents‘ locus standi to
seek the declaratory orders as they were not ‗interested persons‘ in the subject
matter of the litigation.

[16] A proper interpretation of the provisions of both Old and the New Acts must
take into  account  the  background set out in paragraph 3 of this judgment, together

13 Subsection 3 relates to instances where there is evidence or allegations that the identification of a
person as a king or a queen was not done in accordance with customary law, customs or processes.

with the provisions of Chapter 12 of the Constitution, 1996. Sections 211 and 21214
of the Constitution provide, inter alia, for recognition of the institution and role of
traditional leadership and for application of customary law and customs of
communities in dealing with matters of traditional leadership. In line with these
ideals, in its preamble, the Old Act identified its three main purposes:
‗[T]o set out a national framework and norms and standards that will define the place and
role of traditional leadership within the new system of democratic governance;
to transform the institution in line with constitutional imperatives; and
to restore the integrity and legitimacy of the institution of traditional leadership in line with
customary law and practices.‘

[17] As it became evident from the submissions made on behalf of the appellants,
there may be a view that the settlement of traditional disputes through the
Commission does not constitute a solution reached in terms of customary law.
Dissatisfaction has been expressed with the approach adopted by the Commission,
in certain instances, to ‗evidence‘ of customs of certain communities.15 However the
intention of the legislature, that customary law and customs of the relevant
communities must be central to resolution of traditional leadership disputes, is clearly
and consistently expressed in the Constitution and in both the New and the Old Acts.
In terms of s 25(3) of the Old Act, when considering a dispute or claim, the
Commission was obliged to consider and apply customary law and the customs of
the relevant traditional community, as they were when the events occurred that gave

14 These sections read:
‘211  Recognition
(1) The institution, status and role of traditional leadership, according to customary law, are
recognised, subject to the Constitution.
(2) A traditional authority that observes a system of customary law may function subject to any
applicable legislation and customs, which includes amendments to, or repeal of, that legislation or
those customs.
(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.
212  Role of traditional leaders
(1) National legislation may provide for a role for traditional leadership as an institution at local level
on matters affecting local communities.
(2) To deal with matters relating to traditional leadership, the role of traditional leaders, customary law
and the customs of communities observing a system of customary law-
(a)   national or provincial legislation may provide for the establishment of houses of traditional
leaders; and
(b)   national legislation may establish a council of traditional leaders.‘
15 Pereis, see above fn 2. The criticism being that members of the Commission impose their personal
views of customary law and custom rather than those emanating from the communities. For example,
the Commissioners were unwilling to accept that the amaMpondo could have two kingships, ie in
respect of amaMpondo aseNyandeni and amaMpondo aseQaukeni.

rise to the dispute or claim. In respect of a kingship, it had to be guided, in its
decision, by the criteria set out in section 9(1)(b) of that Act and such other
customary norms and criteria relevant to the establishment of a kingship.16 Therefore
the process of consultation was expressly built into the processes of the
Commission.

[18] In terms, s 25 of the Old Act provided:
‗Functions of Commission
25. (I) The Commission operates nationally and has authority to decide on any traditional
leadership dispute and claim contemplated in subsection (2) and arising in any province.
accord-
(2) (a) The Commission has authority to investigate, either on request or of its own
(i) a case where there is doubt as to whether a kingship, senior traditional leadership or
headmanship was established accordance with customary law and customs;
(ii) a traditional leadership position where the title or right of the incumbent is contested;
(iii) claims by communities to be recognised as traditional communities;
(iv) the legitimacy of the establishment or disestablishment of ―tribes‖;
(v) disputes resulting from the determination of traditional authority boundaries and the
merging or division of ―tribes‖; and
(vi) where good grounds exist, any other matters relevant to the matters listed in this
paragraph, including the consideration of events that may have arisen before 1 September
1927.
(b) A dispute or claim may be lodged by any person and must be accompanied by
information setting out the nature of the dispute or claim and any other relevant information.
(c) The Commission may refuse to consider a dispute or claim on the ground that-
(i) the person who lodged the dispute claim has not provided the Commission
(ii) the dispute is to be dealt with in terms of section 21(l)(a) in a case where
(3) (a) When considering a dispute or claim, the Commission must consider and apply
customary law and the customs of the relevant traditional community as they were when the
events occurred that gave rise to the dispute or claim. with relevant or sufficient information;
or section 21(l)(b) does not apply.
(b) The Commission must-
(i) in respect of a kingship, be guided by the criteria set out in section 9(1)(b) and such other
customary norms and criteria relevant to the establishment of a kingship; and

16 Section 25(1)(b) of the Old Act.

(ii) in respect of a senior traditional leadership or headmanship, be guided by the customary
norms and criteria relevant to the establishment of a senior traditional leadership or
headmanship, as the case may be.

[19] It is for that reason that the Commission conducted extensive consultations
with the communities and members of the affected families, including the appellants,
prior to taking its decision. It was not in dispute that extensive consultations were
held by the Commission with the members of the amaMpondo community and the
royal family, including the appellants. That is why, incidentally, there can be no merit
in the appellants‘ non-joinder argument.

[20] As with other decisions of public bodies, the decisions and processes of the
Commission and its interpretation of history and customary law and practices have
been challenged in certain instances.17 I highlight, however, that the decision of the
Commission is extant in this case. And although the Constitutional Court set aside
the recognition of Zanozuko by the President, the decision remains. All that is
required is its implementation by the President. It is within that context that the
matter now proceeds. Must the President then hold further consultations with the
members of the royal family as part of the process of implementing the decision of
the commission?

[21] The proper approach to interpretation of documents and statutes has been
repeatedly explained by this court. In National Joint Municipal Pension Fund v
Endumeni Municipality18 this court held, amongst other things, that, in interpreting
documents, ‗consideration must be given to the language used in the light of the
ordinary rules of grammar and syntax; the context in which the provision appears;
the apparent purpose to which it is directed and the material known to those
responsible for its production.‘ And that: ‗A sensible meaning is to be preferred to
one that leads to insensible or unbusinesslike results or undermines the apparent
purpose of the document.‘19

17 Sandile v President of the Republic of South Africa & others (GP) unreported case no 22654/2011
of 18 October 2016.
18 National Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593
(SCA).
19 Ibid para 18.

[22] The approach suggested by the appellants to interpretation of s 26(2) of the
Old Act would clearly lead to absurdity. Even on a purely textual approach it makes
nonsense of the dispute resolution process provided for in s 25(1) and 25(2)(i) and(ii)
of the Old Act. It is inconsistent with the plain reading of the Old Act and ignores the
role and authority of the Commission, and the provisions of s 26(2). The plain
meaning of s 26(2)(a) is that once the Commission has made a decision, the
President must implement it. On the appellants‘ interpretation the decision of the
Commission would be followed by another round of consultations from which the
royal family could identify, as the king, a person other than the one identified in the
decision of the Commission. In terms of s 9(1)(b) the President would be obliged to
recognise the person so identified by the royal family subject to the provisions of
s 9(3).

[23] In terms of the Old Act neither the President nor members of the royal family
can ignore, or act contrary to, the decision of the Commission. Such would be the
case if the provisions of s 9 would be applicable as contended by the appellants. It is
inconceivable that, having vested the Commission with the power to decide disputes,
the legislature would, thereafter, put in place a process that would undermine the
authority of the Commission. As set out above, proper adherence to s 25(3) meant
that consultations were to be held prior to the decision being taken by the
Commission. Nowhere else in the Old Act, other than in s 25, was the power to
decide leadership disputes granted. Therefore once the Commission had taken a
decision on a dispute, there was no room for consultation after the fact. That
decision had to be communicated to the President for immediate implementation.20
Implementation could only be done in terms of s 9(2) of the Old Act which sets out
the method of recognising a king.

[24] In my view once there was a dispute as to the identity of a king, and the
provisions of s 25 of the Old Act became applicable, the legislature did not envisage
that the provisions of s 9(1) would be applicable. Section 9(1) would only be
applicable in instances of uncontentious succession to the king‘s throne.

20 See s 26(2)(a) of the old Act.

[25] A further string to the appellants‘ bow was that the provisions of s 10(1)(c) of
the Old Act21 were applicable to the implementation process, because the process
entailed the removal of Mpondombini who had been deemed to be a king in terms of
s 28(1) of the Old Act and s 28(8) of the New Act. The submission was that the
identification of Zanozuko, on 21 January 2010 as the rightful king had no external
effect until the purported recognition on 3 November 2010 when the President
purported to issue the notice of recognition. By that time Mpondombini had, with
effect from 25 January 2010 been deemed a king, so it was argued.

[26] Section 28 of the Old Act was headed ‗Transitional arrangements‘. In the
relevant part it provided that:
‗(1) Any traditional leader who was appointed as such in terms of applicable provincial
legislation and was still recognised as a traditional leader immediately before the
commencement of this Act, is deemed to have been recognised as such in terms of section
9 or 11, subject to a decision of the Commission in terms of section 26.‘

[27] Section 28(8) of the New Act provides that:
‗(8)(a) Where pursuant to an investigation conducted in terms of subsection (7), the
Commission has decided that a paramountcy qualifies to be recognised as a kingship or
queenship, such a paramountcy is deemed to be recognised as a kingship or queenship in
terms of section 3A.
(b) The incumbent paramount chiefs, in respect of the kingships and queenships
contemplated in paragraph (a), who were recognised before the commencement of this Act,
are deemed to be kings and queens subject to investigation and recommendation of the
Commission in terms of section 25(2).‘

[28] It is necessary to point out that, contrary to the appellants‘ submission, the
Constitutional Court said in its judgment that Mpondombini‘s challenge to the
decision of the Commission and the President‘s recognition of Zanozuko was
instituted in the Gauteng High Court, Pretoria, before the President‘s notice of
recognition was issued.22 In any event, reliance on these provisions of the Acts does
not assist the appellants. As stated, their argument is that, based on these

21 Section 10(1)(c) states that a king or queen may be removed from office on the grounds of wrongful
appointment or recognition.
22Para 14 of the judgment.

provisions, Mpondombini was deemed to be a king and he would have had to be
removed from the throne in terms of s 10(1)(c). To demonstrate the error of the
appellants‘ reliance on s10 the provisions thereof are cited in full. The section
provides:
‘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
(d)
a transgression of a customary rule or principle that warrants removal.
(2) Whenever any of the grounds referred to in (1)(a)(b) and (d) comes to the attention of the
royal family and the royal family decides to remove the 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.
(3)
Where it has been decided to remove the king or queen in terms of subsection (2),
the President 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.‘

[29] Section 10(1) sets out the reasons for which a king may be dethroned. Even
if, as the appellant claimed, Mpondombini had been deemed to be a king and
therefore the implementation of the Commission‘s decision required his removal for
the reason stated in s 10(1)(c), no process or procedure is laid down in s 10 for such
removal. The provisions of this section therefore do not support the appellants‘
contentions.

[30] Lastly, regarding the respondents‘ locus standi to seek the declaratory relief, it
is trite that an existing dispute is not a pre-requisite for jurisdiction.23 There must be,
as there are in this case, interested parties so that the declaratory order is binding.
Further, considering the nature of this matter, the exercise by the high court of its
discretion in favour of making the declaratory order, was proper. All the three
respondents have an interest in the proper implementation of the decisions of the
commission. This is so particularly in the light of their assertion that more decisions
of the Commission presently await implementation.

[31] Consequently the following order is granted:
The appeal is dismissed.

________________
N DAMBUZA
JUDGE OF APPEAL

23 Ex Parte Nell 1963 (1) SA 754 (A).

APPEARANCES:

For the Appellants:

P M Mtshaulana SC (with P Seleka SC)
Instructed by:
Webber Wentzel Attorneys, Johannesburg
c/o Webbers, Bloemfontein

For the Respondents:

N Arendse SC (with D Börgstrom)
Instructed by:
Bhadrish Daya Attorneys, Pretoria
c/o Matsepes Inc, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
7 June 2017
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

Sigcau v Minister of Cooperative Governance and Traditional Affairs
(612/2016) [2017] ZASCA 80 (7 June 2017).

MEDIA STATEMENT

Today the Supreme Court of Appeal handed down a judgment dismissing an
appeal against an order of the Gauteng Division of the High Court dismissing an
application by Ms Wezizwe and Mrs Masobhuza Sigcau, the daughter and wife
respectively, of the late Mpondombini Sigcau, the erstwhile paramount chief of
amaMpondo aseQaukeni.

At the centre of the appeal is a decision made by the Commission on Traditional
Leadership Disputes regarding the identity of the rightful king of amaMpondo
aseQaukeni. The decision followed a claim laid by Zanozuko Sigcau to the
kingship of amaMpondo aseQaukeni. When Zanozuko lodged the claim with the
Commission his brother, Mpondombini Sigcau, was the incumbent paramount chief
of amaMpondo aseQaukeni, having succeeded his father Botha Sigcau who had

been installed as a paramount chief, firstly in terms of the Black Administration Act
28 of 1927 and later under the Transkei Constitution Act 48 of 1927.

The Commission found that the appointment of Botha over his brother Nelson
(Zanozuko’s grandfather) had been irregular and not in accordance with the law
and custom of amaMpondo. Both Botha and Nelson were the brothers of Kumkani
Marhelane of amaMpondo aseQaukeni who died in 1937 without a male issue.
Botha was born of ikunene (the right hand wife) whilst Nelson was born of iqadi
(consort). The custom was that only the son of iqadi could succeed ikumkani to the
throne and not the son of ikunene, although the latter could establish a semi-
independent community.

The government of the day favoured Botha over Nelson and, contrary to
amaMpondo custom, Botha was installed as the paramount chief of amaMpondo
aseQaukeni. The determination of the Commission that Nelson’s grandson,
Zanozuko was the rightful king of amaMpondo aseQaukeni thus reversed this
distortion.

Following the decision of the Commission the State President officially recognised
Zanozuko as the king of amaMpondo aseQaukeni. By that time the Traditional
Leadership and Governance Framework Act 41 of 2003, from which the
Commission derived its powers, had been amended extensively.

Mpondombini instituted proceedings in the Constitutional Court, challenging the
decision of the Commission together with the recognition of Zanozuko by the State
President. Amongst other things he contended that the State President should
have consulted the royal family of amaMpondo aseQaukeni prior to recognising
Zanozuko.  Unfortunately Mpondombini died before the Constitutional Court ruled
on his challenge.

The Constitutional Court found that, in implementing the decision of the
Commission, the State President had incorrectly invoked the provisions of the

Framework Act subsequent to its amendment, instead of following the prescripts of
the Act prior to its amendment. For that reason the recognition of Zanozuko was
set aside by the Constitutional Court. However, the decision of the Commission
remained valid.

Mpondombini’s widow, Masobhuza Sigcau, adopted the stance that the
Constitutional Court had vindicated her late husband’s position as ikumnkani
yamaMpondo aseQaukeni. She then took up position as the regent and nominated
her daughter, Wezizwe Sigcau, as the queen. Following the endorsement of her
decision by some members of the royal family (the Broadly Extended Royal
Family) the State President was requested to recognise Wezizwe as queen. The
President, together with the Minister of Cooperative Governance and Traditional
Affairs approached the high court seeking a declarator that there was no obligation
on the President to consult the royal family when implementing the decision of the
Commission. Their application in the high court was successful.

In dismissing the appeal against the order of the high court the Supreme Court of
Appeal found that implementation of the order of the Commission, as directed
under s 26(2) of the Act, prior to its amendment, did not require consultation with
the royal family. The court held that although section 26(2) of the Act, prior to
amendment, made reference to sections 9 and 10 thereof, the portions of sections
9 and 10 of which provided for consultation with the royal family in the appointment
of a king or queen were not applicable where there had been a dispute, and the
Commission had, in the exercise of its dispute resolution powers, determined the
identity of the rightful king.