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IN THE HIGH COURT OF SOUTH AFRICA

[EASTERN CAPE DIVISION: MTHATHA]

CASE NO. 3501/2019

In the matter between:

KING PHAHLO ROYAL FAMILY 1st Applicant

LUZUKO MATIWANE 2nd Applicant

And

SIMPHIWE SYDWELL MOLOSI 1st Respondent

NTOMBENKONZO MASETHI 2nd Respondent

DOSINI ROYAL FAMILY 3rd Respondent

THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 4th Respondent

THE MINISTER OF CO-OPERATIVE GOVERANCE AND

TRADITIONAL AFFAIRS 5th Respondent

THE PREMIER OF THE EASTERN CAPE 6th Respondent

___________________________________________________________________

JUDGMENT

___________________________________________________________________

JOLWANA J

Introduction

[1] This matter concerns the incumbency of the kingship of AmaMpondomise. The

history of the kingship of AmaMpondomise is very long as it dates back before the

13th century. There are no historical records that I am aware of that were written in

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the 13th century and before. The historians that have written on the subject would

have written based on the oral traditions of story-telling from generation to

generation much later. An element of doubt on whether the facts so recorded have

in fact been accurately recorded, even by the historians themselves would be

justifiable especially if one assumes that communication might have been facilitated

through interpretation due to possible language differences in some instances. For

these reasons and many others, the history of this matter, including its recorded

format is extremely convoluted.

Background

[2] Brooks J dealt with some of the issues in this matter - and he has summarised

very succinctly some of the history of the AmaMpondomise kingship in Matiwane1.

Because of the interconnectedness of this matter with Matiwane, I do consider it

necessary to start where Matiwane ended which resulted in these proceedings.

[3] This Court said in Matiwane:

“On a conspectus of all the evidence and the material which supports it, in my

view it has been established on a balance of probabilities that AmaMpondomise

had a kingship, alongside the three other major kingdoms whose rootedness in

the Eastern Cape is indisputable. Factors beyond AmaMpondomise control

such as Mfecane wars, colonial occupation and colonial administrative acts

placed AmaMpondomise under enormous pressure, leading to partial

disestablishment and disarray. However, every indication is that since the mid

nineteenth century, repeated attempts have been made by AmaMpondomise

leaders to restore or reinstate recognition of AmaMpondomise kingship. Those

attempts have not failed because of the emergence of strong views from within

AmaMpondomise which indicate that a groundswell of support for a community

without a kingship. Rather, again, those attempts have been thwarted by

1 Matiwane v President of the Republic of South Africa and Others [2019] 3 All SA 209 (ECM)

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apparent political expedience, government inefficiency and, most recently,

administrative action which is inconsistent with the Constitution.”2

[4] Brooks J thereupon issued a court order in which he also ordered that:

“4. It is declared that AmaMpondomise did have a kingship and that such kingship is

hereby reinstated.”3

[5] This historic decision having been made by the Court and the kingship of

AmaMpondomise having been restored; but the question of incumbency remained

unresolved. The issue of incumbency was no longer before court as the fifth and

sixth respondents in Matiwane who are the first and third respondents in this matter

had withdrawn their earlier opposition to that application on condition that the

applicant in those proceedings who is the second applicant in this matter no longer

pursued his claim for the kingship of AmaMpondomise.

[6] The first applicant and the third respondent sent their respective resolutions to the

fourth respondent in which they identified the second applicant and the second

respondent respectively, as the rightful persons entitled to the throne of

AmaMpondomise kingship/queenship in compliance with section 9 of the Traditional

Leadership and Governance Framework Act 41 of 2003 (the Framework Act).

[7] Section 9 of the Framework Act reads as follows:

“9 Recognition of kings and queens

(1) Whenever the position of a king or a queen is to be filled, the following process must

be followed:

(a) The royal family must, within a reasonable time after the need arises for the

position of a king or a queen to be filled, and with due regard to applicable

customary law-

2 Ibid at para 65. 3 Ibid at para 73.

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(i) identify a person who qualifies in terms of customary law to assume the

position of a king or a queen, as the case may be, after taking into account

whether any of the grounds referred to in section 10 (1) (a), (b) and (d)

apply to that person; and

(ii) through the relevant customary structure-

(aa) inform the President, the Premier of the province concerned and the

Minister, of the particulars of the person so identified to fill the position of

a king or a queen;

(bb) provide the President and the Minister with reasons for the identification

of that person as king or queen;

(cc) give written confirmation to the President that the Premier of the province

concerned and the Minister have been informed accordingly; and

(b) The President must, on the recommendation of the Minister and subject to

subsection (3), recognise a person so identified in terms of paragraph (a) (i) as

king or queen, taking into account-

(i) the need to establish uniformity in the Republic in respect of the status

afforded to a king or queen

(ii) whether a kingship or queenship has been recognised in terms of Section

2A; and

(iii) the functions that will be performed by the king or queen;

(2) The recognition of a person as a king or a queen in terms of subsection (1)(b) must be

done by way of-

(a) a notice in the Gazette recognising the person identified as king or queen; and

(b) the issuing of a certificate of recognition to the identified person.

(3) Where there is evidence or an allegation that the identification of a person referred to in

subsection (1) was not done in terms of customary law, customs or processes, the

President on the recommendation of the Minister-

(a) may refer the matter to the National House of Traditional Leaders for its

recommendation; or

(b) may refuse to issue a certificate of recognition; and

(c) must refer the matter back to the royal family for reconsideration and resolution

where the certificate of recognition has been refused.

(4) Where the matter that has been referred back to the royal family for recognition

[reconsideration] and resolution in terms of subsection (3) has been reconsidered and

resolved, the President on the recommendation of the Minister must recognise the person

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identified by the royal family if the President is satisfied that the reconsideration and

resolution by the royal family has been done in accordance with customary law.

(5) (a) The President may, by notice in the Gazette, make regulations concerning-

(i) the traditional or ceremonial role of a king or queen;

(ii) the responsibilities of a king or queen in respect of nation building; and

(iii) other functions or roles of a king or queen.

(b)Regulations made in terms of paragraph (a) must be tabled in Parliament after their

publication in the Gazette”.

[8] Dr Cassius Lubisi, the Director General in the office of the fourth respondent

wrote a letter dated 02 August 2019 to the first applicant and the third respondent in

which he communicated the decision of the fourth respondent as follows:

“12. The President has been advised by the Minister of Co-operative Governance and

Traditional Affairs that Government does not have the legal authority to be involved in

any of the royal family processes of nominating on hair. Only the Royal Family through

the customary structure has the authority to identify a person who qualifies in terms of

customary law to assume the position of a king or queen. Once the royal family has

finalised its processes of choosing the rightful heir, it then notifies government to

facilitate all the required administration processes of recognising and appointing the

Kingship and King respectively.

13. The President has therefore decided to refer the matter back to the Royal Family for

reconsideration and resolution. The two families are requested to resolve the matter

internally and nominate one common heir for the President to recognise as the King of

AmaMpondomise.”

Relief sought

[9] It does not appear that the first applicant and the third respondent met,

reconsidered and resolved the matter. Instead the applicants instituted this

application seeking the following relief:

“1. That the resolution dated 31 May 2019, annexure “G56” attached to the founding

affidavit, issued by the third respondent in terms of which it identified Ntombenkonzo

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Maseti (“second respondent”) as the King or Queen of AmaMpondomise is declared

unlawful and void ab initio, and accordingly set aside.

2. Declaring that the third respondent is not a royal family entitled and responsible for

the identification of any person and making recommendations to the fourth

respondent in terms of section 9 of the Traditional Leadership and Governance

Framework Act 41 of 2003 to assume kingship or queenship of AmaMpondomise,

which position was left vacant by king Mhlontlo.

3. That the first to third respondents are finally interdicted from identifying a person to

assume kingship or queenship and making recommendations to the fourth

respondent in terms of Section 9 of the Traditional Leadership and Governance

Framework Act 41 of 2003, to assume kingship or queenship of AmaMpondomise,

which position was left vacant by King Mhlontlo.

4. The fourth respondent is directed to recognise the second applicant as King of

AmaMpondomise, and to comply within 30 days of this order, with and implement

the first applicant’s resolutions in terms of which the second applicant (“Luzuko

Matiwane”) is identified as the King for AmaMpondomise.

5. The letter, annexure “E” to the founding affidavit written by Dr Lubisi, dated 2nd

August 2019, advising the fourth respondent not to implement the resolutions of the

first applicant is declared unlawful and invalid, accordingly is set aside.

6. That the respondents are ordered to pay the costs of this application only in the

event of opposing the application.”

The facts

[10] There are a number of factual averments on which this application is based

which appear in the founding affidavit deposed to on behalf of the applicants. Some

are not, in my view, pertinent to the issues for determination even though they may

be important as background information of historical and contextual relevance. The

answering affidavit deposed to on behalf of the first, second and third respondents,

the only respondents who are opposed to this application similarly contains a lot of

factual material of historical and contextual significance. Not all such facts are

necessarily relevant for the determination of the issues in this matter. To the extent

that I may not deal with some of them, that does not mean that such facts have not

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been considered in determining this matter which is firmly embedded in its history

and whose organic evolution cannot be divorced from the historical context that

dates back to a period of over seven centuries.

The applicants’ case

[11] The summary of some of the factual averments on which this application is

based is contained in the following paragraphs of the applicants’ founding affidavit:

“25. The dispute in these proceedings is pursuant to the judgment of this Honourable Court

under case number 2047/2018 which was delivered on 16 May 2019. The essence of

the aforesaid judgment was the reinstatement of AmaMpondomise kingship which was

unlawfully withdrawn by the colonial government during the reign of king Mhlontlo

subsequent to the death of a Qumbu Magistrate, Mr Hamilton Hope. A copy of the

judgment is attached hereto marked “C”.

26. A careful reading of the judgment and the order contained therein would reveal that

indeed AmaMpondomise did have a kingship and such kingship has since been

reinstated in terms of the aforesaid judgment. This has been accepted by all the parties

in that litigation.

27. The kingship of AmaMpondomise, as reinstated in terms of the judgment, fully set out in

the judgment under the heading “THE ESTABLISHMENT OF THE AMAMPONDOMISE

KINGDOM AND THE SUCCESSIVE KINGS OF THAT KINGDOM.”

28. First, the time when the kingship of AmaMpondomise was unlawfully removed by the

colonial government, it was King Mhlontlo who was on the throne as King.

Axiomatically, the reinstatement of AmaMpondomise kingship, as has since been done

by the court, would mean that if King Mhlontlo was still alive, he would immediately

assume his position.

29. Second, the reinstatement of the kingship means that it is restored or reinstated to the

royal family house that was ruling at the time of dispossession.

30. Third, the reinstatement directed by the court is only in the context of dispossession of the

kingship by the colonial government and nothing else. The proceedings were instituted

on that basis. The factual matrix in that matter supported the conclusion that the

dispossession of kingship was at the instance of the colonial rule. It is for these reasons

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that upon reinstatement the person who was unlawfully removed from kingship be

reinstated and assume the position of a king. That this is so follows by logic.

Restoration of the kingship that was removed from a person may not occur in vacuum or

in the air.

31. However, at the time of the delivery of the judgment, King Mhlontlo had unfortunately

passed on and the Royal Family became obliged to act in terms of section 9 of the Act

and identify his successor. The custom of the AmaMpondomise dictates that the first

son from the Great House of the King or his direct descent, must assume the position left

by his father or grandfather, unless there are other compelling reasons which include

disinheritance or disentitlement, such son would be the King or it would pass to another

one.

32. In the case of AmaMpondomise, the second applicant is a direct descent of King Mhlontlo.

There was no compelling reason that would prohibit the second applicant from being

nominated to assume the position of a king of AmaMpondomise. For that reason and

others, the King Pahlo Royal Family unanimously identified the second applicant to

assume the position of a King of AmaMpondomise left vacant by the death of his great

grandfather, King Mhlontlo. This was in accordance with the provisions of section 9(1)(a)

of the Act.”

[12] The lineage of the second applicant which I do not understand to be in dispute is

reflected in the founding affidavit as follows:

“35.3 Since [King Mhlontlo] passed on in 1912, then his grandson, Luzuko Matiwane (the

second applicant) had to ascend the throne in terms of the tradition and custom of

AmaMpondomise which has been practiced since the reign of King Cira, King Mte,

King Sabe, King Qengeba, King Majola, King Ngwanya, King Pahlo, King Sontlo,

King Mngcambe, King Myeki, King Matiwane and King Mhlontlo who gave birth to

Prince Charles and then Prince Sigidi and Welsh, the father of Luzuko Matiwane,

second applicant.”

The respondents’ case

[13] Save where I refer to a specific respondent, for the sake of brevity and clarity I

shall refer to the first, second and third respondents as the respondents. The other

respondents do not oppose this application with the fourth respondent merely filing

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an explanatory affidavit. Accordingly, they shall be referred to as cited should it be

necessary to refer to anyone of them.

[14] The second respondent deposed to an answering affidavit also on behalf of the

first and third respondents in which she describes herself as a member of the core

ruling family of AmaMpondomise, and the person nominated by the third respondent

to be the queen of AmaMpondomise.

[15] The respondents have also raised two points in limine, being the failure to

exhaust internal remedies as well as lack of urgency in addition to their other

grounds for opposing this application. I will deal with these points in limine later.

[16] In the main the respondents’ basis for opposing this application is that the

second respondent is the descent of Dosini who was the heir of king Ngcwina. At

paragraph 66 of the answering affidavit the second respondent states that:

“Dosini fathered Nqabashe the father to Ncelenduna. Ncelenduna fathered Mqhorana

the father to Hala. Hala fathered Marule the father to Mxoko. Mxoko fathered

Gxaba the father to Nyakatya. Nyakatya fathered Sigwili, the father to Masethi.

Masethi fathered Ntamnani the father to Myezo. I am the eldest daughter of the late

Myezo.”

[17] This lineage is not in dispute and in fact appears to be common cause. It was

on the basis of this lineage that the second respondent was identified by the third

respondent to be recognised by the fourth respondent as queen of AmaMpondomise

following the judgment of this Court in Matiwane in which the kingship of

AmaMpondomise was reinstated.

[18] The respondents’ fundamental contention is that they do not recognise the

kingship of king Mhlontlo and all those who reigned before him up to king Cira.

There is no dispute or issue about the kingship of AmaMpondomise before and up to

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king Ngcwina. It appears that the applicants accept that Dosini was ordinarily the

heir to the kingship of king Ngcwina as he was the first born son of king Ngcwina’s

great wife MaMqwathi and therefore the heir to king Ngcwina’s kingship. It is

similarly not in dispute that one of the sons from one of the lower houses of king

Ngcwina was Cira who was later preferred for kingship by king Ngcwina who

disinherited Dosini and appointed Cira as king of AmaMpondomise.

[19] The lineage and kingship of Cira is therefore at the centre of the dispute hence

those who inherited the kingship after him are not recognised as kings by the

respondents who have described them as regents or even imposters.

[20] The third respondent’s resolution of the 31 May 2019 captures in very brief but

succinct terms the historical basis of the second respondent’s claim to the throne of

AmaMpondomise and therefore the rejection of the applicants’ claim in the following

terms:

“THE DOSINI ROYAL FAMILY RESOLUTION

WHEREAS

1) The Dosini Royal Family, on 31 May 2019, at Ntshongweni Administrative

Area, Qumbu, Eastern Cape Province held a meeting.

2) Notes the judgment handed down by the High Court of South African Eastern

Cape Local Division: Mthatha, on 16 May 2019 restoring and re-instating the

Amampondomise Kingship.

3) Further notes that the Court’s decision indicates the long standing contention

that AmaMpondomise are a Kingdom, and therefore had a Kingship.

4) Emphasized that the founding King was Mpondimise. On Mpondomise’s

demise his heir Ndunu took over. When Ndunu died his heir Sikhomo

succeeded. When Sikhomo died his great son and heir Njanya took over.

Njanya’s great son and heir Ntose took over on the demise of Malangana.

5) The Mpondomises further note that when Ntose died, his great son and heir

Ngcwina succeeded in terms of the custom.

6) Further notes that, Ngcwina violated the Mpondomise customary law of

succession when he disinherited or deprived his great son and heir Dosini of

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the Kingship of AmaMpondomise in favour of his son Cira from the sixth

House.

7) Emphasized that the Kingship of AmaMpondomise ended on that date.

8) Agreed that the restored Kingship is that Kingship which was lost during the

time of Ngcwina4.

Therefore resolved that:

a) The Dosini House is the rightful [house] to hold the AmaMpondomise

kingship.

b) The Dosini Royal Family which is constituted by among others, Cwera,

Mpinga, Bhukwana, Nxontwe, Ngcitshane and others is the rightful Royal

Family and the custodian of the AmaMpondomise Kingship.

c) The rightful heir to the Kingship/Queenship of the AmaMpondomise is

Dosini’s great grand-daughter Ntombenkonzo Maseti.”

[21] The respondents’ answering affidavit is replete with a lot of historical narrative

and reference to a number of writers all of which are submitted to support the

contentions stated in their resolution of 31 May 2019. In all of the historical narrative

that forms the balk of these papers it is common cause that both Dosini and Cira

were the sons of king Ngcwina. Dosini was the one ordinarily entitled to inherit king

Ngcwina’s kingship and not his son from one of the minor houses, Cira. It is also

common cause that it was king Ngcwina himself who disinherited his son from the

great house, Dosini in favour of Cira.

[22] The bone of contention is that the disinheritance of Dosini was not done

according to customary law. That disinheritance resulted in Cira ascending to the

throne instead of the son from the great house, Dosini. The respondents,

consequently do not accept the disinheritance of Dosini. In a nutshell the

respondents contend that Cira’s ascendance to the kingship was unlawful in that its

foundation - the disinheritance of Dosini, was not done according to customary law

4 My underlining.

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and custom of AmaMpondomise. The respondents submit that at best for Cira and

his successors up to Mhlontlo, they were regents or chiefs hence the second

applicant cannot claim the kingship on his lineage from them.

[23] The respondents have not, however, given any factual basis for their contention

that the kings who reigned from Cira to Mhlontlo could only have been regent kings.

Nowhere in the answering affidavit is it alleged that as a matter of fact Cira was

appointed as a regent king pending whatever future event after which the actual king

ought to have been appointed. There are simply no facts alleged to suggest that

there was a process in which Cira was appointed as a regent king.

The regency of Cira and his descendants

[24] As already alluded to above, the respondents deny that Cira and the other kings

who succeeded him up to Mhlontlo were in fact kings. I deal with those denials

hereunder.

[25] Firstly, on 11 June 2004 Mr S.P. Madasa and Mr S.S. Molosi co-wrote and co-

signed three letters which, in no uncertain terms, acknowledged that since Cira up to

and including Mhlontlo, all those kings reigned as kings until they were displaced by

the colonialist government in what the two gentlemen described as their kingship

being “vindictively wrested”.

[26] The first letter starts at page 723 of the papers and is addressed to the Minister

of Provincial and Local Government and is part of annexure “NM11” to the answering

affidavit. At paragraphs 3 and 4 thereof Messrs Madasa and Molosi wrote:

“Authentic oral tradition and written historical records confirm the existence of

Mpondomise Monarchy in an unbroken genealogical succession for 15 generations

from king Mpondomise (twin brother of King Mpondo to 1904 when it was vindictively

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wrested from the incumbent king of the time although he was found not guilty in May

1904 of the murder of magistrate Hamilton Hope on 23/10/1880.

…

This matter therefore is a unanimous petition for the restoration of official recognition

of the undisputed Mpondomise kingship which existed for 15 generations (more than

375 years) until it was withdrawn by an oppressive colonial government in 1904 and

denied by successive settler regimes and their Bantustan surrogates and the

redress of a century of wrong against our people.”

[27] The second letter is at page 726 and is addressed to the Speaker of the Eastern

Cape Provincial Legislature. In the last paragraph thereof the two gentlemen say:

“Two reports in the daily dispatch of 24 February 2004 and 18 March 2004 indicated

that the report of the Standing Committee on Traditional Affairs was tabled in the

Legislature early this year but had not been debated and adopted in the house. In

the interest of redressing the grievous injustice done against our people by an

oppressive colonial government in divesting the Mpondomise of monarchy status in

1904 although their king had been found not guilty of murder in court the Royal

Council hereby appeals for early consideration and debate of the report of the

Standing Committee on Traditional Affairs by the Legislature and submission of the

decision of the house to the offices of the Premier, the Minister for Provincial and

Local Government and the President for recognition of the kingship status of the

Mpondomise people about which there is no dispute.”

[28] The last letter is at page 727 and is addressed to the Premier of the Eastern

Cape Province. The last paragraph thereof reads:

“In the interests of redressing grievous injustice done against our people by Colonial

Governments settler regimes and their Bantustan surrogates, the Royal Council

respectively appeals for early consideration and debate of the report of the

committee of the Legislature and submission of appropriate recommendations of the

house to the Minister of Provincial and Local Government and the President for final

decision.”

[29] All those letters were written on behalf of the Mpondomise Royal Council and

therefore could not possibly have been expressions of personal opinions and it was

never contended that they were. It is also not without significance that the second

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writer and cosignatory to the three letters, Mr S.S. Molosi is the first respondent in

these proceedings.

[30] Secondly, at page 744B – 746 of the papers there is a document which was

written by the second respondent’s grandfather Mr Jejane Myezo Maseti in which he

was applying for his recognition and installation as the Paramount Chief of

AmaMpondomise. At page 2 of that document he expressed himself as follows:

“When we consider the question as to who is the rightful king of the Mpondomise at

this point in time, VICTOR TONJENI falls way out of line. The kingship belonged to

the DOSINI of whom I am rightful heir – Great House. Even in the family tree

furnished by the historians TONJENI does not appear. The eldest son of one of the

wives of the great King NCWINI, father of DOSINI, was BUKWANA and TONJENI is

no descendant thereof. The eldest son of the Right Hand House was NXONTWE

and TONJENI is no descendant thereof. CIRA was the son of the minor house and

on him, by sheer accident of history, the Kingship fell and CIRA’s line ran the show

for several decades [centuries]. It is on that basis that CIRA’s descendants now lay

claim to the kingship, and we hope to persuade them to appreciate the realities of the

situation and abandon their claim in our favour. As for MR TONJENI, he is way out of

line and there is no basis whatsoever on which he can reasonably pursue the claim.

We know exactly what his true origins are and at the appropriate time we shall spell

out all details.”

[31] In my view, it is clear that on the conspectus of all the evidence, and on a

balance of probabilities Cira and all the kings who reigned after him up to Mhlontlo,

were all reigning as kings and not as chiefs or regent kings. Any suggestion or

contrary submission is not supported by the facts and the evidence including the

admissible evidence submitted by the respondents themselves in annexure NM11.

Therefore the respondents’ submissions that Cira and all the kings who reigned after

him were anything less than a full monarchy is unsustainable.

The disinheritance of Dosini.

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[32] On the merits, the respondents’ main pillar of their case is that in disinheriting

Dosini, king Ngcwina did not observe customary law and custom. For the purposes

of context and for a better understanding of the basis on which the respondents

oppose this application on the merits, I consider it imperative that their historical

narrative of AmaMpondomise as a nation and the circumstances in which they allege

that the disinheritance of Dosini occurred is fully adumbrated.

[33] In their answering affidavit the historical background of the origins of

AmaMpondomise as a nation, their kingship and the disinheritance of Dosini are

detailed as follows:

“84. On being nominated by the Dosini Royal Family to the position of AmaMpondomise

Kingship, I decided to enrich my knowledge and conducted my own research about the

history of AmaMpondomise Kingdom, its Kings and other traditional leaders; customary

laws governing the AmaMpondomise traditional leadership with emphasis on Kingship;

Royal Family etc. I have spoken to old people who have some knowledge in this regard,

consulted books and related

documents.

85. Before dealing with substantive issues raised or averments made in the Applicant’s

Founding Affidavit, and other documents annexed to it, it is important that I first deal with

or address three pertinent issues that are crucial whenever there is a dispute relating to a

traditional leadership position, whether Kingship or Chieftainship or Headmanship. These

issues are firstly, the history of the AmaMpondomise Kingship; secondly, the customary

law of succession in the AmaMpondomise Kingship; and thirdly, the constitution and role

of the Royal Family.

86. As I know it, the AmaMpondomise history was told to me by my father and my other

relatives, is as follows:5

86.1 It is said that the now AmaMpondomise nation originated from North East Africa,

somewhere between Lake Tanganyika and Lake Nyasa. The area is now

occupied and shared among three countries of Malawi, Tanzania and Zambia.

They and their brothers AmaMpondo and AmaXesibe, were for a long time

5 There was a typographical error in the numbering in which instead of 86.1 the affidavit reflects 85.1. This has been corrected for consistency.

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known as aba-Mbo (the Mbo nation). It is said that, this is the same area in which

the amaXhosa, the descendants of Ntu trace their origin from.

86.2 The Mbo nation moved southwards and settled near Zambesi River for a

considerable period before crossing it and settling near Mhlathuzi River,

occupying areas now inhabited by Swatini and Zulu people or nations. It is not

known who led the aba-Mbo nation out of their known original settlement, to the

Zambezi River and later to their third settlement near Mhlathuzi River.

86.3 It is only when they were in their third settlement that the names of their

successive Kings are mentioned. Sibiside, whose Great Place and grave are

said to be near Mhlathuzi River is said to be the first known leader of the aba-

Mbo nation.

86.4 Sibiside fathered Njanya. Njanya is the father of the twins Mpondo and

Mpondomise. On the demise of Njanya, the question of succession arose and

without this matter being decided in the battle as it used to be the practise in the

past, the younger twin Mpondo decided to leave the Great Place with his aba-

Mbo followers and founded the amaMpondo Kingdom and thereby leaving his

twin brother Mpondomise on his father’s throne as the king of the mainline of the

aba-Mbo kingship.

86.5 Mpondomise fathered Ndunu as his great son and heir to the Kingship of the

aba-Mbo nation. In turn Ndunu’s issue was Sikhomo built his Great Place not far

from his father’s place in Natal. Sikhomo fathered two sons Njanya and his great

heir Rudulu.

86.6 Njanya on the other hand had one issue, Malangana, a man of great abilities, a

magician, renowned hunter and great Mpondomise King during his time.

86.7 The aba-Mbo nation lived in Natal /Swatini area, their third settlement for about

six generations under the following Kings Sibiside - Njanya - Mpondomise -

Ndunu - Sikhomo -Njanya.

86.8 On the demise of King Njanya, his great son and heir Malangana, who was

assisted by his maternal uncle Rudulu led the Aba-Mbo movement from their

third settlement in Natal/Swatini, crossed the Umzimkhulu River and settled near

the source of a mysterious river called Dedesi. This is where they joined

AmaXhosa and AbaThembu under the Kings Togu and Hala respectively.

17

86.9 It is important to note that the Aba-Mbo nation were the fourth nation after

AmaXhosa, AbaThembu and their twin brothers AmaMpondo to have moved

from North East Africa, to Natal and settled near Dedesi River. It is also

important to note that it was near Dedesi River where the reference to them as

the AmaMpondomise was first made by the AbaThembu King Hala.

86.10 They lived near Dedesi River for about two generations, Malangana and Ntose.

It was during Malangana’s time that AmaMpondomise explored and set their

boundaries in the area between Umzimkhulu and Mthatha Rivers, and between

Drakensberg Mountain and up to the boundary of AmaMpondo in the east.

They traversed this area hunting animals and are said to be the first to have

occupied it.

86.11 Therefore the boundary lines of the Kingdom of AmaMpondomise is between

Umzimkhulu to Mthatha Rivers, and between Drakensberg to the AmaMpondo

Kingdom in the east. This is where most of their footprints in the form of graves

of their Kings and Chiefs or viable settlements are found even today.

86.12 On the demise of Malangana, his great son Ntose assumed the

AmaMpondomise Kingship. Ntose was the first King to have married more

than one wife. For example, he married three wives. In his first wife, whose

lobola was not paid through the contribution of the nation, issued Cwera. From

his second wife whose lobola once more was not paid though the contributions

of the nation, he issued Mpinga.

86.13 It is important to state that, it was for this (above) reason that neither Cwera or

Mpinga ascended to the AmaMpondomise Kingship. Ntose’s third wife, and

whose marriage was arranged between the two Royal dynasties and lobola

paid through the contributions of the AmaMpondomise nation gave birth to

Ngcwina, the heir to the AmaMpondomise Kingship. Ngcwina’s younger brother

from the same mother was Dombo. It is important to note that Ngcwina’s

mother though last to be married became the First Wife, and therefore Great

Wife who then established the Great House.

86.14 Cwera’s mother established the Right Hand House. The Great House and the

Right- Hand Houses are the most important houses regarding decision making

in the AmaMpondomise Kingdom. The rest of the other houses support these.

86.15 On the death of Ntose, his great son and heir from the Great House Ngcwina

was still underage to succeed, as a result the family chose Cwera to act until

18

Ngcwina came of age. When Ngcwina reached majority and was in a position

to take his father’s position as the King, Cwera stepped down and allowed

Ngcwina to succeed.

86.16 Ngcwina moved the Great Place and settled in the present district of Matatiele

in the area of Mvenyane. During his time Ngcwina married a number of wives.

The first wife whose marriage was not arranged between two Royal dynasties

and whose bride wealth was not paid for through the contributions of the

AmaMpondomise nation gave birth to Bhukwana. These are some of the

reasons why Bhukwana could not succeed his father.

86.17 After Ngcwina’s marriage with Bhukwana’s mother, a Royal marriage was

arranged between the AmaQwathi Royal House whereupon their daughter

MamQwathi became Ngcwina’s Great Wife. It was this marriage that produced

Dosini, Ngcwina’s great son and heir to the AmaMpondomise throne. She also

gave birth to two Dosini’s young brothers Ngqukatha and Gcaka. On

MamQwathi’s arrival, she assumed the status of being the Great Wife, and

therefore established the Great House of Ngcwina. At the same time

Bhukwana’s mother assumed the status of being Right-Hand Wife and

therefore established the Right Hand House in terms of the AmaMpondomise

custom.

86.18 MamQwathi was the wife specifically married to give birth to an heir. She thus

was the Great wife. She is the mother of Dosini.

86.19 Ngcwina’s third wife whose lobola was not paid through the contributions of the

nation issued Nxotwe. The fourth wife gave birth to Ngcitshane, whereas the

fifth one issued Ngcinase.

86.20 King Ngcwina found himself having to marry the sixth wife in an attempt to

conceal or reduce the impact of the embarrassment of his disgraceful or

immoral act to the nation. He got pregnant his own adopted Thwa girl whom he

had adopted as a young girl brought to the Great Place by his hunting

regiments who discovered her in a cave near where the town of Mount Ayliff is

today.

86.21 The young girl grew up as a daughter to the King and his Great Wife

MamQwathi. She knew no other parents other than the King and Queen. She

knew no other brothers other than Dosini, Ngqukatha and Gcaka. No lobola

was paid.

19

86.22 The Thwa-girl’s pregnancy happened simultaneously with that of MamQwathi

with Dosini. The Thwa-woman gave birth to Cira and as Mda observes, that

was when the dust storm began. On the other hand MamQwathi gave birth to

the AmaMpondomise heir Dosini. A separate homestead was built for the Thwa

woman.

86.23 As if making the Thwa-girl pregnant and making her his wife was not

scandalous enough, Ngcwina earned the wrath of the nation by his unilateral

act of attempting to switch Kingship line from MaMqwathi House (Dosini’s

mother) to Thwa-woman House (Cira’s mother) without following the

AmaMpondomise custom. In other words, he attempted to choose Cira over

Dosini as his heir to the AmaMpondomise Kingship without following or

observing custom.

86.24 Ngcwina’s sons including Bhukwana, Nxontwe, Ngcitshane, Zumbe as well as

other senior houses such as that of Cwera and Mpinga refused to participate or

endorse Ngcwina’s wishes.

86.25 As a result of Ngcwina’s demise, the Royal Family instructed Dosini to move

the Great Place and establish it at Mhlabathi. Secondly, other AmaMpondomise

prominent house were spread across the unoccupied land of AmaMpondomise

Kingdom. For example, Cwera was allowed to settle near where the town of

Ntabankulu is today which at that stage was a boundary between the

AmaMpondo and AmaMpondomise nations. Nxontwe settled at Ntibane near

Tsolo. Bhukwana settled around Sulenkama near Qumbu. Zumbe settled in

Ndzebe near Tsolo. Ngcitshane and Debeza sent to Maseleni and Debeza near

where the town of Qumbu is today. Nxuba settled around Mjika area near

Tsolo, mostly at the boundary between AmaMpondo and AmaThembu. Mpinga

settled near Tina River not far from where the town of Qumbu is today. These

were strategic deployments directed by Dosini and his Royal Family.

86.26 Cira later moved from Mvenyane and settled not far from Dosini. The fight

between Dosini and Cira which started when Ngcwina attempted to confer the

AmaMpondomise Kingship to Cira in violation of AmaMpondomise custom

continued since then. The peace, stability and harmony that Mpondomises had

enjoyed came to an end as the fight for Kingship between Dosini and Cira and

in many cases among the Cira descendants continued unabated for centuries.

20

86.27 Dosini’s descedants in terms of the AmaMpondomise Kingship were

Nqabashe-Nceleduna - Mqhorana - Hala - Marule - Mxoko - Gxaba - Nyakatya

- Sigiwili - Masethi- Ntamnani - Myezo - Ntombekonzo. On the other hand,

Cira’s descendants were Sabe - Mte - Qengebe - Majola - Ngwanya -

Ngcambe - Myeki - Matiwane - Mhlontlo”.6

[34] It will be observed from the above narration that at paragraph 86.25, the

respondents allege that on the instructions of the Royal Family, Dosini moved the

great place and established it at Mhlabathi after the death of king Ngcwina. The

respondents are, however, surprisingly silent on what happened to that great place,

the Royal Family and the Dosini kingship thereat. It is also not clear which areas

were ruled by Dosini after he allegedly moved his great place to Mhlabathi and what

happened to his kingship which he is said to have been established at Mhlabathi.

Furthermore, paragraph 86.26 paints a picture of a fight taking place between Dosini

and Cira starting when king Ngcwina “attempted to confer the AmaMpondomise

kingship to Cira” which fights allegedly continued for centuries unabated. It is not

clear whether or not those fights were actual wars or just fights and how they ended.

The story unfortunately ends without any attempt to establish that Dosini or any of

his descendants did in fact rule as kings anywhere and the areas which might have

fallen under his kingship during his fights with Cira. If he did reign as king the

respondents do not deal with how and when they lost their kingship in those areas

and how Cira took over. The respondents’ silence on these important issues is

worryingly too loud.

[35] The second respondent makes it clear that she obtained the above historical

narrative by asking older people in the community with some knowledge of the

events. She also mentions that her father and her other relatives told her this history

6 Footnotes have been omitted

21

and she also did her own research reading books and other historical material. While

the difficulties which confronted the second respondent in putting together a cogent

account of what happened are real, they do point to the paucity of credible

information including books that were written around the 13th and 14th century or

other credible means of record keeping that go that far. Even the books that have

been referred to by the respondents were all written a number of centuries later, in

fact during the 19th century and later, which is much later in relation to when these

events occurred.

[36] I do not think that it would be correct, in light of all these difficulties and many

other challenges, to slavishly use the later and current academic writings on these

issues. It is not unimaginable that they might have been infused with common law

reasoning or even customary law that has been infused with common law influence

or even the current understanding of moral rectitude which might not necessarily be

a true reflection of what was happening at the time.

[37] In Bhe7 Ngcobo J alluded to these difficulties when he said:

“[156] The concept of succession in indigenous law must be understood in the context of

indigenous law itself. When dealing with indigenous law every attempt should be

made to avoid the tendency of construing indigenous law concepts in the light of

common law concepts or concepts foreign to indigenous law. There are obvious

dangers in such an approach. These two systems developed in two different

situations, under different cultures and in response to different conditions.”

[38] If one accepts the first respondent’s statement in the letter which he, together

with Mr Madasa, wrote to the Minister of Provincial and Local Government on behalf

of and in their capacities as members or officials of the Mpondomise Royal Council,

7 Bhe and Others v Khayelitsha, Magistrate and Others 2005 (1) SA 580 (CC) at para 156.

22

there were 15 generations of kingships from king Mpondomise to king Mhlontlo or a

period of more than 375 years between those kingships. Some writers estimate the

period to more than 500 years from king Cira to king Mhlontlo.

[39] Whichever number of centuries, years or generations is closest to the period

from king Cira to king Mhlontlo, it is undeniable that it is an unduly long period of

time. Throughout all those generations, the Dosinis did not succeed in getting back

the kingship from the house of Cira. There is no credible evidence or historical

information of it being challenged, at least not successfully, throughout that very long

period by the Dosini descendants in any way whatsoever. All of this happening at a

time when there were no colonialist anywhere near the land of AmaMpondomise or

even the present day South Africa. In other words the kingship moving from king

Ngcwina to Cira and remaining in that house for centuries had nothing to do with the

colonialists.

[40] A submission has been made in the heads of argument filed on behalf of the

applicants that the respondents have not challenged the disinheritance of Dosini and

whether that disinheritance was properly made or not it remains valid until set aside

by a competent authority. It was further submitted that there is no counter

application even in these proceedings for the setting aside of the disinheritance of

Dosini and the transfer of the kingship to the house of Cira. The respondents have

not made any cogent submissions to gainsay the applicants’ submissions on this

point. This makes it difficult to understand the submission by the respondents that

the third respondent “challenge the disinheritance purportedly carried out by king

Ngcwina as having been an uncustomary and unlawful disenfranchisement of the

Great House by king Ngcwina”. It is indeed so that both in the Nhlapo and Tolo

Commissions, and in Matiwane, the issue was formally raised with evidence being

23

given in the context of the respondents claiming the kingship. However, I am not

aware of any steps that the respondents have taken in the past up to this point to

have the disinheritance set aside.

[41] The clearest legal principle I could think of to clarify my point on this issue is

what is commonly referred to in our jurisprudence as the Oudekraal8 principle. In

Kirkland Investments (Pty) Ltd9 Cameron J explained the Oudekraal principle in the

following terms:

“The essential basis of Oudekraal was that invalid administrative action may not simply be

ignored, but may be valid and effectual and may continue to have legal consequences,

until set aside by proper process. The court expressed it thus:

‘For those reasons it is clear, in our view, that the Administrator’s permission

was unlawful and invalid at the outset…. But the question that arises is

what consequences follow from the conclusion that the Administrator acted

unlawfully. Is the permission that was granted by the Administrator simply to

be disregarded as if it had never existed? In other words, was the Cape

Metropolitan Council entitled to disregard the Administrator’s approval and

all its consequences merely because it believed that they were invalid

provided that its belief was correct? In our view, it was not. Until the

Administrator’s approval (and thus also the consequences of the approval)

is set aside by a court in proceedings for judicial review it exists in fact and it

has legal consequences that cannot simply be overlooked. The proper

functioning of a modern State would be considerably compromised if all

administrative acts could be given effect to or ignored depending upon the

view the subject takes of the validity of the act in question. No doubt it is for

this reason that our law has always recognised that even an unlawful

administrative act is capable of producing legally valid consequences for so

long as the unlawful act is not set aside.’

In the present case the Supreme Court of Appeal relied on this passage in concluding

that the department was not entitled simply to ignore the approval. And rightly. In doing

so, the court acted in accordance with the stature Oudekraal has acquired over the last

decade. It has been consistently applied by the Supreme Court of Appeal as well as by

8 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) 9 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC) at paras 101-3

24

this Court. The underlying principle, that public officials may not take the law into their

own hands when seeking to override conduct with which they disagree, has also been

given effect in three cases involving schools’ policies on admission of learners.

The fundamental notion - that official conduct that is vulnerable to challenge may have

legal consequences and may not be ignored until properly set aside – springs deeply

from the rule of law. The courts alone, and not public officials, are arbiters of legality.

As Khampepe J stated in Welkom-

‘(t)he rule of law does not permit an organ of state to reach what may turn out to be a

correct outcome by any means. On the contrary, the rule of law obliges an organ of

state to use the correct legal process’.

For a public official to ignore irregular administrative action on the basis that it is a

nullity amounts to self-help. And it invites a vortex of uncertainty, unpredictability and

irrationality. The clarity and certainty of governmental conduct, on which we all rely in

organising our lives, would be imperilled if irregular or invalid administrative acts could

be ignored because officials consider them invalid.”

[42] Lest I am misunderstood, I am not suggesting that king Ngcwina acted in an

administrative capacity as in the above matter. I am suggesting that he must have

acted as king with the authority of a king at that time. The extent of that authority

and what could be done if he was considered to have acted contrary to customary

law is a different matter. There is no evidence that king Ngcwina’s Royal Family or

council corrected or even protested about his actions nor is there evidence that in

disinheriting Dosini Ngcwina acted unilaterally as the respondents suggest. In fact

there is no evidence of how it was done and whether or not he acted unilaterally

beyond the respondents’ allegations.

[43] These proceedings are not about the review and setting aside of king Ngcwina’s

disinheritance of Dosini and as indicated before, the respondents have not asked

this Court to set aside the disinheritance of Dosini. It follows therefore that, that

disinheritance remains valid until set aside regardless of what one’s view about it

25

might be. Even if there was acceptable evidence to prove that the disinheritance of

Dosini was unlawful, this Court could not set it aside without an application before it.

Points in limine

[44] The respondents have raised some points in limine one of which relates to the

internal remedies provided for in sections 9 and 21 of the Framework Act. Section 21

of the Framework Act reads as follows:

“21 Dispute and claim resolution

(1) (a) Whenever a dispute or claim concerning customary law or customs

arises between or within traditional communities or other customary

institutions on a matter arising from the implementation of this Act,

members of such a community and traditional leaders within the

traditional community or customary institution concerned must seek

to resolve the dispute or claim internally and in accordance with

customs before such dispute or claim may be referred to the

Commission.

(b) If a dispute or claim cannot be resolved in terms of paragraph (a),

subsection (2) applies.

(2) (a) A dispute or claim referred to in subsection (1) that cannot be resolved

as provided for in that subsection must be referred to the relevant

provincial house of traditional leaders, which house must seek to

resolve the dispute or claim in accordance with its internal rules and

procedures.

(b) If a provincial house of traditional leaders is unable to resolve a

dispute or claim as provided for in paragraph (a), the dispute or claim

must be referred to the Premier of the province concerned, who must

resolve the dispute or claim after having consulted-

(i) the parties to the dispute or claim; and

(ii) the provincial house of traditional leaders concerned.

(c) A dispute or claim that cannot be resolved as provided in

paragraphs (a) and (b) must be referred to the Commission.

26

(3) Where a dispute or claim contemplated in subsection (1) has not been

resolved as provided for in this section, the dispute or claim must be

referred to the Commission.”

[45] The internal remedies provided for in section 21 of the Framework Act have

recently received the attention of the Supreme Court of Appeal in Mphephu10. In that

case Mothle AJA, writing for the full court expressed himself as follows:

“[26] It is further common cause that the appellant did not present any evidence or

allegation to the second respondent in terms of s 9(3) of the Framework Act.

The section provides that where there is evidence or an allegation that the

identification of a person referred to in s 1 (in this case the first respondent) was

not done in accordance with customary law, custom or processes, the second

respondent may deal with that evidence or allegation as provided for in s 9(3)(a)

and (b) and must do so in (c) read with s (4) of both Acts. Between 14 August

2010, when the eighth respondent identified the first respondent as the

incumbent to the Throne, and 21 September 2012 when the second respondent

recognised him as the King of Vhavenda, the appellant, then aged above 18 and

assisted by her uncle, had ample opportunity to produce evidence or make an

allegation to the second respondent in support of her claim. She contends that

she was not obligated to do so. Stated otherwise, she contends that she had no

obligation to comply with the Framework Act.

[27] This Court in Netshimbupfe held that a party seeking the kind of relief such as

that sought by the appellant, had to follow the process outlined in the Framework

Act. There is no authority to support the contention by the appellant that she can

at will ignore the dispute resolution provisions of the Framework Act and directly

approach the Court. The Framework Act provides for a designed leadership

dispute resolution process in terms of customary laws and customs. Apart from

the allegation that her uncle unsuccessfully attempted to approach the eighth

respondent prior to and during the meeting of 14 August 2010, to which I will

later return, the appellant in the High Court and this Court manifested an

intention of non-compliance with the provisions of the Framework Act in

10 Mphephu v Mphephu-Ramabulana and Others [2019] 3 All SA 51 (SCA)

27

prosecuting her claim to ascend the Throne. In particular, in regard to lodging a

claim or declaring a dispute with the old or new Commissions, she allowed such

to prescribe. The High Court was thus correct in concluding that the appellant is

non-suited for failure to follow the processes provided for in ss 9, 21 and 25 of

the Framework Act.”11

[46] Firstly, this case is clearly distinguishable from Mphephu in that both the second

applicant and the brother of the second respondent had championed their claims

before the Nhlapo and the Tolo Commissions. Those commissions came to the

conclusion that there was no kingship and therefore no person to be recognised as

king or queen. With all their research and specialist capacities with which the

commissions under the Framework Act are regarded, it is undeniable that this Court

had, on two occasions, to set aside the findings of these commissions for acting

unlawfully and ignoring evidence that was readily available to them. I do not think

that it would be correct in this case to say that internal remedies were not exhausted.

Unless of course, the expectation is that the applicants or the respondents for that

matter, should have again gone back to the commission ad infinitum raising the

same issues.

[47] Secondly, the applicant did not remain supine regarding staking his claim to the

fourth respondent. In fact, the first applicant did what it needed to do in compliance

with the Framework Act as did the third respondent resulting in the fourth respondent

exercising his discretion to refer the matter to the families for reconsideration and

resolution in terms of section 9(3)(c). The appellant in Mphephu did not so much as

to make an allegation to the President, which is not the case in this matter.

11 Ibid at paras 26-7

28

[48] It is clear that the second applicant was properly identified by the first applicant

to the extent that he comes from the Cira lineage and is a direct descendant of

Mhlontlo. In that respect there can be no dispute in my view. What the respondents

dispute is the entitlement to the throne of AmaMpondomise of not only the second

applicant but also king Mhlontlo and all those who reigned before him up to king

Cira, the first king in the Cira lineage. That challenge or allegation of non-

compliance with the customary law prescripts is premised in the disinheritance of

Dosini by his father king Ngcwina. In that regard there is nothing to investigate by

the commission in my view as it is not in dispute that Dosini was disinherited by king

Ngcwina. It is the compliance of king Ngcwina with customary law and custom in

disinheriting Dosini and handing over the kingship to the minor house of Cira in or

around 1300 that is in dispute. Most importantly, the respondents are not contending

that the custom of disinheritance is foreign in the customs of the AmaMpondomise,

something that might require a commission to investigate. The respondents

recognise the custom of disinheritance but contend that it was not complied with or

the disinheritance was not done properly.

[49] In my view, it is not the purpose of the Framework Act to investigate the

propriety with which kingships might have been established in the early stages of the

existing kingships. I have the feeling that doing so would open the proverbial can of

worms, for lack of a better expression, in respect of many other traditional leadership

positions or incumbents in relation the correctness of either the process followed or

even in some cases, violence that might have been used, which might or might not

have been appropriate at the time of the establishment of those traditional

leaderships. It is not difficult to imagine that some of the kingdoms or kingships

might have been established through wars and conquest for example. Is that

29

something that could be investigated in terms of the Framework Act? I do not think

so.

[50] I am emboldened in this view by the decision of the Constitutional Court in

Bapedi Marota Mamone12 where the court said:

“[108] Finally, the Commission’s factual findings included that Kgosi Thulare forcibly

deposed Kgosi Dikotope, becoming the leader of the Bapedi without any prior

entitlement based on the customary rules of succession. Notwithstanding that Kgosi

Thulare became king solely through usurpation, the Commission’s report found – and

this is not disputed by any party – that the Bakgoma and Bakgomana nominated a

timamollo wife for him. That wife’s son, Kgosi Malekutu, became the rightful heir and

successor in title to the kingship of the Bapedi after the death of [Kgosi Thulare].

Here is an undisputed example where the Bakgoma and Bakgomana did nominate a

timamollo wife for a king who acquired his rule through usurpation. And, still more

significantly, the Commission’s finding on this point controverts the main judgment’s

core proposition that usurping kings could not pass on their authority to their heirs. It

also provides ample justification for the Commission’s decision that Kgosi

Sekhukhune I’s kingship competently passed down to his successors.”

[51] In that case the Constitutional court refused to set aside the Commission’s

findings. In so doing the Constitutional Court effectively recognised acquisition of

kingship at that time through force or conquest. This is important because the

respondents do contend that the disinheritance of Dosini was marred by violence

among other things and therefore uncustomary.

[52] The fundamental premise and purpose of the Framework Act is explained in

detail in the same case by Jafta J where he said:

“[8] In 1909, the control of African affairs was vested in the Governor–General who

succeeded the governors of the various colonies. In 1927 the Native Administration

Act was passed. In Western Cape Provincial Government, this Court described this

legislation in these words:

12 Bapedi Marota Mamone v Commission on Traditional Leadership Disputes and Claims and others 2015 (3) BCLR 268 (CC) at para 108.

30

“The Native Administration Act, 38 of 1927 appointed the Governor–General

(later referred to as the State President as supreme chief of all Africans. It

gave him power to govern Africans by proclamation. The powers given to

him were virtually absolute. He could order the removal of an entire African

community from one place to another. The Native Administration Act

became the most powerful tool in the implementation of forced removals of

Africans from the so-called white areas’ into areas reserved for them. These

removals resulted in untold suffering.”

[9] The de-legitimisation of traditional leadership continued under the Administration Act

which was amended and given a new title on a number of occasions. The treatment of

traditional leaders under the Act was described by Professor Bennett in these terms:

“Those [traditional leaders] who opposed the government, no matter what

traditional legitimacy they might have enjoyed could be ousted from office or

passed over in matters of succession. Hence, although the Department of

Native Affairs was generally prepared to make appointments from the ruling

families, where necessary it could depart from the established order of

succession by choosing uncles or younger brothers or by promoting

subordinate headmen. The outcome was a compliant cadre of traditional

leaders who provided the personnel needed to realise an increasingly

unpopular state policy.”13

[53] This is the background in which the Framework Act has to be construed and

understood in my view. It is not necessarily intended to right all the wrongs of the

past, however in some circumstances it does restore what was lost through the

colonial influence. To put it differently, its primary purpose is to correct, as far as

possible, the distortions of colonial aggression. There is no authority for any

submission whose import is that that the Framework Act is intended to check if

customary law was followed in the early stages of settlement and the establishment

of kingships in various places by the indigenous people.

13 Ibid at paras 8-9

31

[54] Just to demonstrate the point that I am trying to make on this issue, I will refer to

what professor Jeff Peires14 had to say:

“Let us, for the sake of progress, ignore the fact that the Commission (not a traditional

institution) in Clause 7.2.5 has arrogated to itself the right to determine what

traditional leaders may or may not do. Let us ponder the implications of its

deification of the hereditary principle in conjunction with its rejection of the 1927

deadline. Taking as our example the three Eastern Cape kingships confirmed by the

Commission, we find the hereditary principle violated in each and every case:

among the amaXhosa, when Tshawe replaced Cirha; among the abaThembu, when

Dhlomo replaced Hlanga; and among the amaMpondo, when Gangata replaced

Qiya. These events happened several centuries ago, but all these deposed factions

have their descendants, and the logic of the Commission’s criteria should surely

have obliged it to restore the kingly status quo as it had been in the Eastern Cape

around the year 1650, that is before the arrival of Van Riebeeck.

…

History by its very nature is a series of unique events, whereas law seeks to define

and articulate the recurrent norms and usages by which any given society tries to

function. Any attempt, therefore, to apply the consistencies of law to the

inconsistencies of history is bound to fail. What would have happened, for example, if

the Commission had applied its version of customary law to the well-known case of

the Zulu kingdom? Ignoring the 1927 cut-off date, as it usually did, the Commission

would have had no difficulty going back to 1840, some years before British colonial

authority was imposed on the colony of Natal. That was the year in which Mpande

fled his homeland to enlist the support of the Voortrekker leader, Andries Pretorius.

In February 1840, the Boers destroyed the army of Dingane and proclaimed Mpande

King of the amaZulu. The Commission should have asked whether that was in

accordance with Zulu customary law.

By the criterion of customary law, all the descendants of Mpande onwards can only

be seen as illegitimate, and the Commission is duty bound to replace Zwelithin with a

more legitimate incumbent. But who? Mpande’s predecessor, according to

customary law, was his brother Dingane. But Dingane had murdered his own

predecessor, Shaka, another clear contravention of Zulu custom. Further research

by the Commission would have revealed that Shaka himself had usurped the

chiefship of his father Senzangakhona, leaving the Commission with no option but to

14 History versus customary law, Commission on Traditional Leadership: Disputes and Claims. SA Crime Quarterly No.49. September 2014 page 17. http://dx.doi.org/10.4314/sacq.v49i1.1

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identify the most senior descendant of Sigujana, Senzangakhona’s rightful heir, and

to place him on the Zulu throne.”

[55] Even if I am wrong in this regard there are other difficulties with the challenge

based on internal remedies as provided for in the Framework Act. One of those

difficulties is that the respondents’ attorneys did ask the fourth respondent to refer

the matter to a commission.

[56] In their letter dated 4 June 2019 the respondents’ attorneys advised the fourth

respondent that the third respondent has nominated the second respondent for

appointment as heir to the throne. They further told the fourth respondent that there

was a dispute about who the rightful heir was in the following terms:

“It is apparently clear too that there is a dispute herein as to who is the rightful

incumbent as Phahlo Royal Family are recommending one Mr Matiwane. In the

premises we propose that a commission in terms of the act be appointed to enquire

on who could be the rightful heir in terms of customs and tradition of Mpondomise

nation.”

[57] The fourth respondent elected not to appoint a commission but referred the

matter back to the Royal Family for reconsideration and resolution. He also

requested the two families to “resolve the matter internally and nominate one

common heir for the President to recognise as the king of AmaMpondomise.” Not

only did the fourth respondent not appoint a commission as requested by the

respondents, he also elected not to refer the matter to the National House of

Traditional Leaders for its recommendations – as provided for in section 9(3)(a) of

the Framework Act. It was not up to the applicants to refer the matter to the National

House of Traditional Leaders but a prerogative of the fourth respondent.

[58] It appears from the correspondence exchanged between the attorneys of the

applicants and the respondents that an attempt was made by both sides to meet and

33

seek to resolve the matter. There are accusations and counter accusations about

why the meeting did not materialise.

[59] The Framework Act only deals in section 9(4) with a situation in which the royal

family met, reconsidered and succeeded in resolving the matter. It does not deal

with an attempt having been made but the parties fail to meet or having met, the

parties do not agree on the person to recommend to the President. In that respect

the lacuna in the Framework Act is palpable.

[60] The applicants allege in the founding affidavit that the attorneys of both sides

agreed that an application be launched in this Court to determine which one of the

two families is the legitimate royal family for purposes of identifying the rightful heir.

Unfortunately and inexplicably, the respondents only deal with the aspect of urgency

or semi urgency of the matter in their answering affidavit and do not deal with the

alleged agreement about the launching of the application.

[61] Whether or not a genuine attempt was made by the parties to meet and resolve

the matter is beside the point. The fact of the matter is that the Framework Act does

not provide for such situations. The parties’ attorneys seem to have agreed that the

best way to resolve the impasse is to approach this Court for relief. On the facts of

this matter I cannot see why the applicants were not entitled to approach Court for

an appropriate relief. In any event it was also available to the respondents, to do any

of the things they say the applicants should have done. It seems to me that if the

issue of the disinheritance needed to be investigated, it was open to the respondents

to initiate the process and indeed they did so but the fourth respondent did not

consider it necessary to appoint a commission as requested by the respondents.

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The suggestion that there was anything else which the applicants needed to do

before launching these proceedings is, in my view, misplaced.

[62] Another problem with any possibility of referring the matter to a commission is

that the commission must make recommendations to the President. Assuming that

the commission were to recommend that the President must set aside the

disinheritance of Dosini, which would be a very strange recommendation, the

President has no power to do so in terms of the Act. In my view only a court can set

aside the disinheritance of Dosini. If this is correct I fail to understand how a matter

like the disinheritance can be referred to a commission which can only make a

recommendation to a functionary, the President, who has no power to set aside

anything in terms of the Framework Act. This possibly explains why the fourth

respondent did not see a need in appointing a commission. I cannot fault the fourth

respondent in his approach on this issue on the facts of this matter. After all section

9(3)(a) gives him a discretion to refer a matter to the National House of Traditional

Leaders. He does not have to do so.

[63] The other point in limine is urgency. On the issue of urgency it was submitted

on behalf of the applicants that if there was non-compliance with the Uniform Rules

of Court on urgency, it was open to the respondents to institute rule 30 proceedings

to deal with that non-compliance. At paragraph 56 of the answering affidavit the

second respondent says that she had asked her attorneys to deal with the non-

compliance with urgency rules in terms of rule 30. This was not done. Furthermore,

it is not clear how the shortened time frames with which the respondents elected to

comply without challenging them affected them in their preparations in the final

analysis. No prejudice was pointed out and I cannot see any. This application was

launched on 17 September 2019 and heard on 5 November 2019. I simply cannot

35

see how that period would have been insufficient for proper preparations and filing of

papers to be made.

Requirements for a final interdict

[64] The relief sought by the applicants is in the form of a declarator and a final

interdict. The requirements for a final interdict are trite and have been stated and

restated in our courts for over a century since Setlogelo v Setlogelo15. In that case

the former Chief Justice, Lord De Villiers CJ stated the requirements for a final

interdict thus:

“So far as the merits are concerned the matter is very clear. The requisites for the

right to claim an interdict are well known, a clear right, injury actually committed or

reasonably apprehended and the absence of similar protection by any other ordinary

remedy.”

[65] The respondents have made a submission in their heads of argument which in

essence is that the second respondent is the direct descendent of Dosini who was

disinherited in circumstances which they say marred the appointed successor to king

Ngcwina, king Cira by disaffection, possible abduction or even murder and therefore

king Cira’s kingship was not sacrosanct, so the submission went. As already stated

elsewhere in this judgment, it remains so that king Ngcwina did disinherit Dosini and

did prefer Cira to succeed him for reasons best known to him and his royal family.

Since then king Cira’s lineage has been uninterrupted in their kingship until king

Mhlontlo was removed from his position by the colonialist government.

[66] The second respondents’ claim to be entitled to the queenship of

AmaMpondomise and the third respondent’s right to identify a person are both in the

15 1914 AD 221

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context of being descendants of Dosini. I could not find evidence that Dosini ever

ruled anywhere nor is there evidence of his descendants ever becoming kings

anywhere since the disinheritance of Dosini round about the 13th century. That

makes the respondents’ submission and claim to be the core ruling family untenable

as it is not substantiated by any facts.

[67] It is common cause that the second applicant is in fact a direct descent of king

Mhlontlo. That gives him a clear right to be identified to succeed his great

grandfather in terms of customary law, to the extent that his claim to the throne of the

kingship of AmaMpondomise is based on him being the descendant of king Mhlontlo.

It follows that a clear right has been established for him to succeed Mhlontlo in terms

of customary law of AmaMpondomise, at least until the disinheritance of Dosini is

successfully challenged by the respondents.

[68] The harm is not only that of the applicants but that of AmaMpondomise as a

whole. These papers make it clear even on the basis of the respondents’ own

submissions that the absence of a leader to lead the nation of AmaMpondomise is a

harm that must be brought to an end as it is a continuing harm. The alternative

remedies that are contained in the Framework Act to the extent that it is submitted

that they should have been exercised, have been exercised in the sense of the

fourth respondent choosing to refer the matter to the families to reconsider and

resolve the matter. They have failed to do so and the Framework Act is silent on

what should happen when the royal family is either unwilling or fail to resolve the

matter.

[69] In Mphephu the Supreme Court of Appeal did point out that despite the

availability of the remedies provided for in the Framework Act the courts remain

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entitled and in fact are enjoined by the Constitution16 to adjudicate on the issues of

customary law. The jurisdiction of the courts is not automatically ousted by the

failure to exhaust internal remedies provided for in the Framework Act although in an

appropriate case the court may exercise judicial deference in favour of the

commission. In a case like this one in which the parties did go to the commissions

previously, raising two critical points namely, the reinstatement of the kingship and

their recognition as kings, courts should be extremely slow to close their doors to the

litigants by referring them back to the commission, only because it failed to do its job

properly, by failing to use the very expertise and capacity it is renowned for, which

are some of the main reasons for its existence.

[70] This is more so that in this case king Ngcwina disinherited Dosini and preferred

Cira to become a king. Since then the house of Cira has been leading

AmaMpondomise as kings for centuries. There is no internal remedy, in my view,

provided for in the Framework Act that the applicant was, in the circumstances,

obliged to exercise first before coming to this Court. Even if that remedy was

available, the respondents are also equally entitled to exercise it and they have

elected not to do so, at least up to this point. The respondents have also not

expressed an intention to do so. It is the respondents who have an issue with the

lawfulness of the disinheritance of Dosini. It follows that it is the respondents that

ought to take whatever steps necessary to have it set aside by whatever lawful

means. It clearly cannot be that the applicants should have kept quiet and waited for

the respondents to challenge the impugned disinheritance, if they ever decided to do

so.

16 Constitution of the Republic of South Africa, 1996. Section 211 (3) provides: “(3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.”

38

Conclusion

[71] I must point out that even if king Mhlontlo was alive and was reigning as king the

respondents would still be entitled to follow the processes provided for in the

Framework Act to stake their claim for the throne. That said, I cannot see any

obstacle for the respondents or any other person in future establishing that he or she

is entitled to be the king or queen of AmaMpondomise, once the disinheritance is

dealt with. Therefore the recognition of the second applicant cannot possibly affect

the respondents in taking whatever steps necessary to prosecute their claim for the

throne of AmaMpondomise in future.

[72] That this is so appears from the Framework Act itself. Section 10 thereof reads:

“10 Removal of kings or queens

(1) A king or queen may be removed from office on the grounds of-

(a) conviction of an offence with a sentence of imprisonment for more

than 12 months without an option of a fine;

(b) physical incapacity or mental infirmity which, based on acceptable

medical evidence, makes it impossible for the king or queen to

function as such;

(c) wrongful appointment or recognition; or

(d) a transgression of a customary rule or principle that warrants

removal.

(2) Whenever any of the grounds referred to in subsection (1)(a), (b) and (d)

come to the attention of the royal family and the royal family decides to

remove a king or queen, the royal family must, within a reasonable time

and through the relevant customary structure-

(a) inform the President, the Premier of the province concerned and the

Minister, of the particulars of the king or queen to be removed from

office;

(b) furnish reasons for such removal; and

(c) give written confirmation to the President that the Premier of the

province concerned and the Minister have been informed

accordingly.

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(3) Where it has been decided to remove a king or queen in terms of

subsection (2), the President on the recommendation of the Minister

must-

(a) withdraw the certificate of recognition with effect from the date of

removal;

(b) publish a notice with particulars of the removed king or queen in the

Gazette; and

(c) inform the royal family concerned, and the removed king or queen of

such removal.

(4) Where a king or queen is removed from office, a successor in line with

customs may assume the position, role and responsibilities, subject to

section 9.”

[73] As indicated before the Framework Act is not there to frustrate or make it difficult

for ordinary succession to traditional leadership positions to happen in clear cases

such as the entitlement of the second applicant to succeed king Mhlontlo. It is there

to provide a framework for past colonial distortions to be corrected where they are

found to exist. The recognition of the second applicant and his ascension to the

kingship left vacant by the removal of king Mhlontlo by the colonialist government in

what the court in Mhlontlo described as his vindictive removal does not prevent the

respondents from following all the processes in the Framework Act to deal with the

disinheritance of Dosini and therefore the appointment of Cira and the other kings

even up to the second applicant.

[74] In the result it follows that the applicants must succeed in their application. I

cannot see any reason why the costs should not follow the results.

[75] Therefore, the following order will issue:

1. It is declared that the resolution dated 31 May 2019, annexure “G56” attached to

the founding affidavit, issued by the third respondent in terms of which it identified

40

the second respondent as queen of AmaMpondomise is unlawful and accordingly

set aside.

2. It is declared that the third respondent is not a royal family entitled to identify any

person as king or queen in terms of section 9(1)(a) of the Framework Act 41 of

2003 to assume kingship or queenship of AmaMpondomise which was left vacant

by king Mhlontlo.

3. The first to third respondents are finally interdicted from identifying a person to

assume kingship or queenship and in terms of section 9(1)(a) of the Traditional

leadership and Governance Framework Act 41 of 2003 to assume kingship or

queenship of AmaMpondomise, which position was left vacant by king Mhlontlo.

4. The fifth and fourth respondents are directed to comply with their obligations

provided for in section 9(1)(b) of the Traditional Leadership and Governance

Framework Act 41 of 2003 within 30 days of this order and consider the first

applicant’s resolutions in terms of which the second applicant is identified as the

king of AmaMpondomise.

5. The first, second and third respondents are directed to pay the costs of this

application including costs occasioned by the employment of two counsel where

applicable.

____________________

M.S. JOLWANA

JUDGE OF THE HIGH COURT

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Appearances:

Counsel for the Applicants: M. GWALA SC

Instructed by: MVUZO NOTYESI INC.

Mthatha

Counsel for the 1st, 2nd & 3rd Respondents: M. MATHAPHUNA with W.N. SIDZUMO

Instructed by: MKATA ATTORNEYS

Mthatha

Heard on: 07 November 2019

Delivered on: 14 January 2020