THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 260/13
Reportable

In the matter between:

BAPEDI MAROTA MAMONE
Appellant

and

THE COMMISSION OF TRADITIONAL
LEADERSHIP DISPUTES AND CLAIMS
First Respondent

THE PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA
Second Respondent

THE MINISTER OF PROVINCIAL
AFFAIRS AND LOCAL GOVERNMENT
Third Respondent

MOHLALETSI TRADITIONAL AUTHORITY
Fourth Respondent

ACTING KGOSHIKGOLO
KGAGUDI KENNETH SEKHUKHUNE

Fifth Respondent

Neutral citation:
Bapedi Marota Mamone v The Commission of Traditional
Leadership Disputes and Claims & others (260/13) [2014] ZASCA
30 (28 March 2014)
Coram:
Maya, Leach, Theron and Willis JJA and Mocumie AJA
Heard:
17 February 2014
Delivered:
28 March 2014

Summary:
Review – s 6(2) of the Promotion of Administrative Justice Act 3 of
2000 – review threshold – whether the Commission of Traditional
Leadership Disputes and Claims ignored relevant material
information placed before it when deciding that the institution of the
Bapedi kingship resorts under the Sekhukhune lineage – whether
such decision rationally connected to that information or justifiable
on the reasons given for it.

_________________________________________________________
ORDER

On appeal from: North Gauteng High Court, Pretoria (Makgoba J sitting
as court of first instance).

The appeal is dismissed with costs that include the costs of two counsel.
___________________________________________________________
JUDGMENT

Maya JA: (Leach, Theron and Willis JJA and Mocumie AJA
concurring)

[1] This is an appeal against the judgment of the North Gauteng High
Court (Makgoba J) dismissing an application for the review, setting aside
and remittal for reconsideration of a decision taken by the first
respondent, the Commission of Traditional Leadership Disputes and
Claims (the commission), and ancillary relief. The commission and the
fourth and fifth respondents opposed the proceedings in the court below
and the second and third respondents abided the court’s decision. Only
the appellant and the commission are involved in this appeal, brought
with the leave of this court.

[2] The appellant is a traditional authority recognised as such in terms
of the Traditional Leadership and Governance Framework Act 41 of 2003
(the Act)1 and s 211 of the Constitution.2 It has a vested interest in the

1 Defined under the heading ‘traditional leadership’ in s 1 of the Act as a customary institution or
structure recognised by traditional communities.
2 Under s 211(1), read with s 212 of the Constitution Act 108 of 1996, the institution, status and role of
traditional leadership, according to customary law, are recognized, subject to the Constitution.

determination of the institution of the kingship of the Bapedi community
and the lineage under which it resorts. It is represented in these
proceedings by Kgoshi Mampuru Mampuru III, its traditional leader. The
fourth respondent is an opposing traditional authority, represented by its
traditional leader, Acting Paramount Kgoshi Kenneth Sekhukhune, in
whose royal house the commission found the Bapedi kingship to resort. It
was cited in the proceedings merely as an interested party and,
accordingly, no order was sought against it.

[3] The commission is an organ of state established in terms of s 22(1)
of the Act. It is one of the bodies created under the Act to counter the
erosion of the institution of traditional leadership by past colonisation, by
carrying out the Act’s objectives of (a) defining the place and role of the
institution within the new system of democratic governance; (b)
transforming it in line with constitutional imperatives and (c) restoring its
integrity and legitimacy in line with customary law and practices.3 One of
its functions is to investigate and make recommendations in cases where
there is doubt as to whether a kingship that was established and
recognised before the commencement of the Act, was established in
accordance with customary laws and customs of the relevant traditional
community as they applied at the time.4

[4] In the exercise of that function and of its own accord, the
commission initiated an investigation, which entailed public hearings
involving interested parties as well as research, for the Kgagudi
Sekhukhune Rhyne Thulare Sekhukhune and Mampuru Royal Houses, to
determine whether the paramountcy of the Bapedi was established in

3 As stated in the Act’s preamble.
4 In terms of s 25(2)(a)(i) of the Act.

accordance with customary laws and customs of the Bapedi traditional
community.5 In that exercise, the commission first established that (a) the
Bapedi currently have an officially recognised paramountcy; (b) Kgoshi
Kgagudi Kenneth Sekhukhune is the acting paramount chief; and (c)
there are 70 officially recognised senior traditional leaders6 within his
area
of
jurisdiction,
Sekhukhune
District,
Greater
Tubatse,
Makhuduthamaga, Fetakgomo and Marble Hall.

[5] The commission then traced the history of the Bapedi lineage and
kingship, which may be summarized as follows. The Bapedi traditional
community originated from a Batswana clan, Bakgatla ba Makau, which
lived near the Vaal River during the 16th century. It was led by Tabane
who had five sons, Diale his heir and successor, Kgwadi, Kgetsi,
Matsibolo and Mosia. Diale left the area with his wife and followers, who
would form the core of the Bapedi, and resettled at Fateng near Fort
Weeber.7 He was succeeded by his son, Thobela, who founded the Bapedi
traditional community and settled at the foot of the Leolo mountains, at
Mohlake, around 1650. The chieftaincy then passed down the generations
to Kabu, Thobejane, Moukwange and Mohube, respectively.

[6] Upon Mohube’s death, his younger brother, Mampuru I, became
regent for Mohube’s young heir and successor, Moramotshwe I.
Subsequently, a succession struggle ensued between Mampuru I and
Morwamotshe I. Mampuru I was defeated and fled the community with
his followers. Dikotope, Morwamotshe I’s son, then succeeded his father.

5 A traditional community is defined in s 1 of the Act as a community that is subject to a system of
traditional leadership in terms of that community’s customs and observes a system of customary.
6 Defined in s 1 of the Act as ‘a traditional leader of a specific traditional community who exercises
authority over a number of headmen or headwomen in accordance with customary law, or within
whose area of jurisdiction a number of headmen or headwomen exercise authority’.
7 Legend has it that he left to protect his wife and unborn child whom the community wanted to kill
because the child had cried whilst still in the womb, an incident perceived as a bad omen.

His younger brother, Thulare I, however, contested the chieftaincy.
Assisted by Mampuru I, Thulare I killed Dikotope and usurped the
chieftaincy. He then established the Bapedi kingship by conquering
several neighbouring tribal communities between 1790 and 1820. When
he died the kingship passed to his heir and successor, Malekutu I. The
latter was poisoned for the throne by one of his brothers, Matsebe who
was then killed by another brother, Phetedi. Phethedi and Thulare I’s
other sons were subsequently assassinated by the Matebele of Mzilikazi
in the Difaqane war.

[7] Only one of Thulare I’s sons, Sekwati I, survived the invasion. He
settled north-east of present day Nebo district with his followers and re-
established the Bapedi monarchy, which he expanded by conquering
surrounding tribal communities. As regent for Malekutu I, who died
without an heir, he was expected, in terms of custom, to raise seed for the
late king. Although Sekwati I had a wife and son, Sekhukhune I, he took
a candle wife or a timamollo8 to bear Malekutu I’s heir and successor in
accordance with Bapedi custom. The candle wife duly bore a son,
Mampuru II.

[8] After Sekwati I’s death in 1861, Sekhukhune I challenged his half-
brother for the kingship by throwing a spear at him. Mampuru II would
not fight.  Instead, he fled the kingdom with the royal insignia and took
refuge among the Swazi tribes. Sekhukhune I then buried their father and
ascended the throne. He killed all Mampuru II’s followers and forcefully
consolidated several communities to further expand the Bapedi kingdom.
In 1879, the British colonial government, which was in power at the time,
incarcerated Sekhukhune I and installed Mampuru II in his place. But,

8 A wife married specifically to bear an heir and successor for a deceased king.

upon Sekhukhune I’s release in 1881, Mampuru II fled again and
Sekhukhune I successfully reclaimed the kingship. On 13 August 1882,
however, Mampuru II ambushed and killed Sekhukhune I. Surprisingly
though, he fled thereafter without ascending the throne. Subsequently, on
21 November 1883, he was convicted and hanged in Pretoria for the
murder.

[9] Successive regencies followed thereafter. Notably in the chain,
Kgoloko, Sekhukhune I’s half-brother, became regent for the latter’s
minor son, Sekhukhune II, until he came of age. The latter did ascend the
throne in due course and was predeceased by his heir, Thulare II. Thus,
after his death, his other son, Moramotshe III, became regent until he died
in 1965. Mampuru II, on the other hand, was succeeded (presumably
where he had settled) by Malekutu II who died in 1905. The latter’s son,
Malekutu III, succeeded him and ruled until death in 1958. Thereafter his
son and heir, the current Kgoshi Mampuru III, took reign over the
Mamone traditional community which falls under the appellant.

[10] A dispute arose in the commission’s investigation between the
opposing royal houses’ versions concerning the status of Sekhukhune I
and Mampuru II following the death of Malekutu and the rest of Thulare
I’s sons. According to the Sekhukhune royal house, Sekwati I refused to
marry a candle wife because he had a wife and had already identified
Sekhukhune I as his successor. Despite his refusal, the Bakgoma and
Bakgomana9 took a candle wife who bore a child that Sekwati I could not
have sired as he was too old, so they said. The Mampuru royal house, on
the other hand, contended that according to Bapedi custom the power to
marry a candle wife for a deceased king vests solely in the Bakgoma

9 The royal advisors.

Bakgomana and not in the regent. Who actually fathers the heir is
irrelevant and the deciding factor for succession is that the child is borne
by a candle wife. Sekwati I’s attitude towards marrying a candle wife
was, therefore, immaterial. In any event, he recognised Mampuru II as the
rightful heir and even gave him the royal insignia, they argued.

[11] Against this backdrop, the commission made the following
findings. It agreed with the version that according to Bapedi custom, in
the case of a king who dies without an heir, the Bakgoma and
Bakgomana take responsibility for identifying and marrying a candle wife
and appoint someone to raise seed for the deceased king. But it matters
not who sires the candle wife’s child as maternity is the overriding
consideration for succession. As Sekwati I was a mere regent, he had no
kingship to pass to his eldest son, Sekhukhune I. It was not unusual,
however, for kingship to be obtained through might and bloodshed. As
such, Sekhukhune I’s usurpation of the kingship accorded with common
practice at that time. Mampuru II’s possession of the royal insignia alone
did not give him kingship and he did not ascend the throne according to
custom at any stage. The commission then concluded, inter alia, that (a)
Sekhukhune I won the succession battle against Mampuru II; (b) the
Bapedi paramountcy is a kingship; and (c) the kingship resorts under the
lineage of Sekhukhune I.

[12] The Mampuru (Bapedi Marota Mamone) royal house accepted
these findings. It took issue only with the finding that Mampuru II never
ascended the throne and its decision that the kingship resorted under the
Sekhukhune lineage. Consequently, the appellant launched review
proceedings in the high court. Mainly, it wanted the commission to
reconsider the decision, alternatively declaratory relief vesting the

kingship in it and declaring Kgoshi Mampuru Mampuru to be the king of
Bapedi.10 The application was premised on the grounds that:
‘1 The Commission in deciding on the question where the lineage in which [the]
Kingship resorts ignored relevant facts and evidence placed before it or to which it
had access as contemplated in section 6(2)(e)(iii) of [the Promotion of Administrative
Justice Act 3 of 2000 (PAJA)].
2 The decision of the Commission regarding the choice of lineage of the kingship of
Bapedi is neither rationally connected to the information before it nor to the reasons
given by it as stated in section 6(2)(f)(ii)(cc) and (dd) of PAJA.’

[13] The appellant contended that the commission ignored Mampuru
II’s reign during Sekhukhune I’s incarceration and that he defeated and
killed him upon his release which, it argued, ended Sekhukhune I’s
lineage to the kingship. The court below rejected these contentions. It
took the view that the commission’s methodology met the constitutional
standard and was proper,11 that it considered all the evidence placed
before it and that its decision was rational. The court concluded that the
commission’s determination on the facts before it was unimpeachable and
dismissed the application.

[14] On appeal, the appellant identified the following issues for
determination:
(a) whether the high court’s finding that there was  a succession battle
between Sekhukhune I and Mampuru II, which the former won, was
correct;
(b) whether the succession issue should have been determined solely on
the basis that it was not unusual for kingship to be obtained through
might and bloodshed and not by birth;

10 The alternative relief was sought in amendment proceedings brought in terms of Uniform rule 28
after the institution of the application.
11 The means employed by the commission in its investigation was, in any event, not placed in issue.

(c) whether the high court’s findings that the commission did not ignore
relevant material evidence in its determination and was rationally
connected to the information at its disposal was correct; and
(d) whether the high court’s approach to the review of the commission’s
administrative action was correct.

[15] The appellant’s key contentions in argument before us were that
the court below: (a) ignored the commission’s failure to consider the
evidence of Mampuru II’s reign, even if brief, which the commission
conceded in its answering affidavit and was in accordance with
established customary principle of male primogeniture; (b) disregarded
the appellant’s submission that there was no succession battle between
the two protagonists as Sekwati I had already passed the kingship to
Mampuru II, the only king to have ruled the whole Bapedi nation, and
that kingship was a birth right which cannot be lost whether exercised or
not; (c) failed to properly evaluate the customary principle of usurpation
of kingship by might and bloodshed, which the commission applied
inconsistently, by ignoring the evidence that Mampuru II killed
Sekhukhune I to defend his kingship of the Bapedi nation and was thus
the last king after Sekwati I; (d) failed to evaluate the facts within their
historical context as it ignored the evidence that Mampuru II, who was
favoured by the British authorities as the rightful heir to the throne by
birth, refused to submit to the jurisdiction of the Boer authorities, the
incumbent government upon Sekhukhune’s release from jail, which
favoured the latter for that reason. It was finally contended that the court
below blindly deferred to the commission and accepted its findings
without question as it should have found that there was no rational
connection between the information at the commission’s disposal and its

finding on lineage, which was not justifiable in relation to the reasons
given for it.

[16] It must be pointed out at the outset that the only allegations made
in the appellant’s founding papers in support of its review grounds, on
which the case was conducted in the court below, were that the
commission (a) ignored the fact of Mampuru II’s brief installation on the
throne by the British authorities during Sekhukhune I’s incarceration; (b)
correctly found that kingship could be usurped through might and
bloodshed but failed to apply this rule to Sekhukhune I’s murder by
Mampuru II, acting in defence of his throne; and (c) ignored historical,
official records which supported these facts. Therefore, most of the
contentions made in its heads of arguments and orally in court as set out
in paragraph [15] above, have no foundation in its affidavits. It is trite
that an applicant in motion proceedings must set out the allegations upon
which it relies and make out a proper case in its founding papers. It
cannot make a case on appeal that was not pleaded in its papers.12 The
appellant is thus precluded from relying on any newly raised allegations
that were not made in its affidavits.

[17] Turning to the review grounds in issue, the first consideration is the
standard of review of administrative action which must be applied in
adjudicating this appeal.13 The right to administrative action that is
lawful, reasonable and procedurally fair derives from s 33(1) of the
Constitution. Section 33(3) of the Constitution envisages the enactment of

12 Shakot Investments (Pty) Ltd v Town Council of the Borough of Stanger 1976 (2) SA 701 (D);
National Council of SPCA v Openshaw 2008 (5) SA 339 (SCA);  Betlane v Shelley Court 2011 (1) SA
388 (CC) at 396C.
13 It was not in dispute that the commission’s decision constituted administrative action and that the
provisions of the Promotion of Administrative Justice Act 3 of 2000, which the appellant invoked,
apply.

national legislation to give effect to that right. The Promotion of
Administrative Justice Act 3 of 2000 (PAJA) is that legislation. Section
6(2) of PAJA provides, in relevant part, for the judicial review of
administrative action if
‘…
(e)
the action was taken –
…
(iii)
because irrelevant considerations were taken into account or
relevant considerations were not considered;
…
(f)
the action itself –
(ii)
is not rationally connected to –
…
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator;’
(It is relevant too that s 22(2) of the Act itself requires the commission to
carry out its functions in a manner that is fair, objective and impartial.)

[18] The review threshold is rationality.14 The test is an objective one15
and the reviewing court asks if there is a rational objective basis
justifying the connection made by the administrative decision-maker
between the material made available and the conclusion arrived at.16

14 Bel Porto School Governing Body & others v Premier, Western Cape & another 2002 (3) SA 265
(CC) para 89; Carephone (Pty) Ltd v Marcus NO & others 1999 (3) SA 304 (LAC) paras 31 and 32.
15 Pharmaceutical MNFRS of SA: In re Ex Parte President of the RSA & others  2000 (2) SA 674 (CC)
para 86.
16 Carephone above n14; Trinity Broadcasting (Ciskei) v ICASA 2004 (3) SA 346 (SCA) para 21.

Administrative action that fails to pass this threshold is inconsistent with
the requirements of the Constitution and is unlawful.17 It matters not that
the decision-maker acted in the belief, in good faith, that the
administrative action was rational.

[19] As indicated, the only contentions in support of the appellant’s case
that warrant determination (and with which the court below dealt
squarely) are those set out in paragraph [16] above. In regard to the
allegations in (a) and (b), the court below agreed with the commission,
correctly so in my opinion, (and the appellant properly accepted this
finding in its papers) that Sekhukhune I legitimately usurped the kingship
as it was not uncommon to do so through might and bloodshed. In the
court’s view, Mampuru II’s coronation by the British government was
inconsequential as it was a unilateral act, inconsistent with Bapedi
customary law, and intended merely to fulfil that government’s policy.
This must be so as no evidence whatsoever was given to the commission
that the Bakgoma and Bakgomana, upon which it was agreed the task of
identifying the king in accordance with Bapedi customary law and
custom rests, was involved in Mampuru II’s enthronement. The court
below further approved the commission’s finding that Mampuru II’s
conduct in clandestinely killing Sekhukhune I and thereafter fleeing was
entirely inconsistent with an intention to conquer and take over kingship
and was sheer murder for which he was accordingly convicted by a court
of law and executed. I can find no fault with this finding on the evidence
placed before the commission.

17 Democratic Alliance v President of the Republic of South Africa & others 2013 (1) SA 248 (CC)
para 27; Masetlha v President of the Republic of South Africa & another 2008 (1) SA 566 (CC) para
81; Pharmaceutical MNFRS of SA above, para 90.

[20] The contention set out in (c), which counsel rightly did not argue
with any vigour, is equally without merit. The commission dealt
comprehensively with the historical records which purportedly supported
the appellant’s case and showed that the appellant’s reliance on them was
totally misplaced as they were irrelevant to the issues under consideration
and were quoted out of context. The commission’s report, which forms
part of the record, succinctly described the methodology employed by the
commission in its investigations, which was properly not challenged, and
is replete with references to various historical texts and legislation.

[21] In short, the appellant failed to prove that the commission ignored
any relevant evidence. There simply is no basis on the record to conclude
that the commission’s decision was not rationally connected to the
information before it, or the reasons given by it. There is also no basis for
the bald contention that the court below blindly deferred to the
commission. It is well to keep in mind that unlike, in the case of appeals,
in review proceedings
‘[t]he setting of [the review] standard does not mean that the Courts can or should
substitute their opinions as to what is appropriate for the opinions of those in whom
the 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 interfere with the decision simply because it disagrees with it …’18

[22] Lastly, it is necessary to deal briefly with an issue which, although
not raised in argument before us, was nonetheless not expressly
abandoned – the quest for a declarator concerning who should be the
rightful heir to the Bapedi throne. Suffice to say that it was ill-conceived

18 Pharmaceutical MNFRS of SA, above para 90.

as it had no basis at all. The task of the commission was merely to
determine the existence of the Bapedi kingship and its lineage. It made a
decision solely in that regard and it is only the rationality of that decision
that could be the subject of any review proceedings. And again, as was
common cause in the papers, the power to identify the king rests solely
with the Bakgoma and Bakgomana, in accordance with Bapedi customary
law and custom.

[23] In all the premises, I am satisfied that the commission did nothing
that constitutes a ground, recognised in our law, for review. The decision
it made is one which a reasonable decision-maker could reach.19 The high
court correctly dismissed the application and the appeal must, therefore,
fail.

[24] Accordingly, the following order is made:

The appeal is dismissed with costs that include the costs of two counsel.
__________________
MML MAYA
JUDGE OF APPEAL

19 Bel Porto above, para 90.

APPEARANCES:

For appellant:
DS Kumalo SC (KJ Selala)

Instructed by:

JP Moloto & Co, Johannesburg
Matsepes Inc, Bloemfontein

For 1st respondent:
G Bofilatos SC (LM Montsho)
Instructed by:

Bradrish Daya Attorneys, Pretoria

Webbers Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
28 March 2014
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.

BAPEDI MAROTA MAMONE V THE COMMISSION OF TRADITIONAL
LEADERSHIP DISPUTES AND CLAIMS

The Supreme Court of Appeal (SCA) today unanimously dismissed an appeal against the
judgment of the North Gauteng High Court (Makgoba J) dismissing an application for the
review, setting aside and remittal for reconsideration of a decision taken by the first
respondent, the Commission of Traditional Leadership Disputes and Claims (the
commission).

The commission initiated an investigation for the Sekhukhune and Mampuru Royal Houses,
to trace the history of the Bapedi lineage and kingship and to determine whether the
paramountcy of the Bapedi had been established in accordance with the relevant customary
laws.. At the conclusion of its investigations, the commission concluded inter alia that the
Bapedi paramountcy is a kingship and that the kingship resorts under the lineage of the
Sekhukhune, The Mampuru royal house took issue with the latter finding.

Consequently, the appellant launched review proceedings under the Promotion of
Administrative Justice Act 3 of 2000 in the high court. It sought an order for the commission
to reconsider the decision, alternatively declaratory relief vesting the kingship in it and

declaring Kgoshi Mampuru Mampuru to be the king of Bapedi.  The application was
premised on the grounds that the decision of the commission regarding the choice of lineage
of the kingship of Bapedi was taken without consideration of all the material evidence placed
before it and bore no rational connection to the information before it or to the reasons given
for it. The high court, having found no fault with the commission’s findings and decision,
dismissed the application.

On appeal, the SCA held that the appellant had failed to prove that the commission ignored
any relevant evidence; that there is no basis on the record to conclude that the commission’s
decision was not rationally connected to the information before it or the reasons given by it as
the court below found; and that the appellant’s contention that the court below blindly
deferred to the commission was equally without basis.