By Michael Mbikiwa on 25 August 2014

This application is about the determination of the king of the Pedi nation.  The applicant, a traditional authority recognised under the Traditional Leadership and Governance Framework Act 41 of 2003 (‘the Framework Act’), seeks to review and set aside a determination made by the Commission for Traditional Leadership Disputes and Claims (commonly known as ‘the Nhlapo Commission’) that the kingship of the Pedi nation resorts in Acting Kgošikgolo Sekhukhune III – and not in Kgoši Mampuru Mampuru III, the applicant’s leader.

The kingship dispute arose in 1861, when the Pedi regent, Sekwati, died.  He was survived by two sons, Sekhukhune I and Mampuru II.  Mampuru II was born of Sekwati’s “candle wife” (a wife married specifically to bear an heir and successor for a deceased king), but Sekhukhune I was not.  Mampuru II was therefore the rightful heir.  But Sekhukhune I challenged Mampuru II, who fled the kingdom.  Sekhukhune I then ruled for over twenty years, with only one interruption: in 1879, after the British annexed the Transvaal Republiek, they imprisoned Sekhukhune I and replaced him on the throne with Mampuru II.  But when the Boers regained their independence in 1881, Sekhukhune I was released, and he again ousted Mampuru II.  But Mampuru II returned the following year and murdered Sekhukhune I.  Again Mampuru II fled, but was soon captured by the Boers and executed for his crime on 22 November 1883.  Sekhukhune I’s progeny ruled the Pedi nation for the next 130 years.

In 2004, the Nhlapo Commission was established in terms of section 22(1) of the Framework Act.  It comprised several customary-law experts (section 23(1)) and was tasked with investigating and deciding all kingship disputes (section 28(7)) by “consider[ing] and apply[ing] customary law and the customs of the relevant traditional community as they were when the events occurred” (section 25(3)(a)).  The rightful king of the Pedi was one significant dispute it had to decide.  It conducted its investigations over two years, holding several public hearings at which Sekhukhune III and Mampuru III testified, and undertaking its own historical research.

On 15 January 2008 the Commission released its Report, which found in favour of the Sekhukhune Royal House and against the applicant, the Mamone (or Mampuru) Royal House.  It found that, although Mampuru II was Sekwati’s heir, “[i]t was not unusual for the kingship to be obtained through might and bloodshed and therefore the usurpation of the kingship by Sekhukhune [when he challenged and drove off Mampuru II] was in line with the common practice of that time.”  So Sekhukhune I had legitimately become king.  And, crucially, Mampuru II did not win the kingship when he murdered Sekhukhune I twenty years later.  For he never ascended the throne after the murder; he simply fled and was executed soon after.  The upshot was that Sekhukhune I and his heirs, including the current incumbent, Sekhukhune III, are the Pedi people’s rightful kings.

On 26 August 2008 the Mamone instituted review proceedings in the North Gauteng High Court, Pretoria, asking it to set aside the Commission’s decision on two grounds.  First, the Commission ignored relevant facts and evidence placed before it or to which it had access, thus impugning section 6(2)(e)(iii) of the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’).  The Mamone pointed out that the Commission’s Report did not mention Mampuru II’s coronation by the British at all.  Second, the Commission’s decision was, the Mamone said, neither rationally connected to the information before it nor to the reasons given by it, in contravention of section 6(2)(f)(ii)(cc) and (dd) of PAJA.  In their founding affidavit, the Mamone conceded that the Commission had found, “correctly so, that ‘it was not unusual for kingship to be obtained through might and bloodshed and therefore usurpation of the kingship by Sekhukhune was in line with the common practice at that time’.”  But, the Mamone said, the Commission had applied this rule inconsistently: when Mampuru II returned and killed Sekhukhune I, he qualified to assume the kingship “through might and bloodshed”; yet the Commission had, irrationally, reached the opposite conclusion.

The Court found ringingly against the Mamone.  It held there was no evidence that the Commission had not considered the fact of Mampuru II’s coronation by the British; and there was no need for its Report specifically to refer to it.  This was because there was no evidence, the Court held, that Mampuru II’s coronation had been in accordance with Pedi customary law.  To the contrary, it was clearly the unilateral act of the colonial power, which could not conceivably make Mampuru II the rightful king under customary law.  The Commission had not, therefore, ignored any relevant evidence.

Nor, according to the Court, was the Commission’s decision irrational.  The Commission had a rational basis for distinguishing Mampuru II’s murder of Sekhukhune I from Sekhukhune I’s accession “through might and bloodshed”. Unlike Sekhukhune I’s driving off of Mampuru II, the murder did not occur in the context of a leadership challenge.  And, after the murder, Mampuru II immediately fled the kingdom, after which he was captured and then executed.  Far from taking over the kingship, this was, the Court held, the conduct of a common criminal.

The Court concluded by clarifying its role in review proceedings: it is only to test the Commission’s decision for rationality, rather than to re-take the decision or determine whether it agrees, and it owes the findings of the Commission’s expert a measure of deference.

For these reasons, the High Court dismissed the Mamone’s application with costs.

The Supreme Court of Appeal (per Maya JA; Leach JA, Theron JA, Willis JA and Mocumie AJA concurring) dismissed the Mamone’s appeal, substantially agreeing with the High Court and giving the Mamone’s arguments short shrift.  Maya JA held the Commission’s application of the “through might and bloodshed” rule was unimpeachable.  Mampuru II’s clandestine murder of Sekhukhune I and subsequent flight was entirely inconsistent with an intention to conquer and assume the kingship.  It was “sheer murder” (para 19).  And the Mamone had altogether failed to prove the Commission ignored relevant evidence.  The Commission had dealt with a wealth of historical material during its rigorous investigations, and there was no reason to think the British government’s unilateral coronation of Mampuru II was approved by the Pedi elders.

The Constitutional Court has set down a further appeal by the Mamone, who persist with their main arguments in the courts below.  Interestingly, however, the Mamone’s heads of argument attempt to withdraw their concession in the lower courts that kingship could be usurped “through might and bloodshed” (see paras 23-24).  This may be because the Constitutional Court sent out further directions on 6 June 2014, asking the parties to address them on specific issues – including, “[i]n view of Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) and Richtersveld Community and Others v Alexkor Ltd 2003 (6) SA 104 (CC), whether the customary law rule that kingship could be acquired through might and bloodshed was properly established” and, if not, “in the light of the concession made by the applicant…whether this Court may reverse the findings of the Supreme Court of Appeal and the High Court, based on the concession.” In its heads of argument in response to the directions, and in an attempt to retreat from its earlier concession, the applicant now submits that usurpation by might and bloodshed was “never a rule but simply a practice which was never elevated to customary law” (para 5).

These directions and the decisions to which they refer suggest that the Court may feel the Commission failed properly to establish the customary law it was meant to be applying. If so, it is unclear how the Court could skirt the applicant’s concession in the lower courts that the Commission’s finding concerning the existence of the “by might and bloodshed” customary-law rule was correct. More importantly, even if it were able to do so, the fact remains that the Commission’s customary-law experts considered a wealth of historical evidence and witness testimony over two years and justified the rule in their Report by referring to earlier examples in Pedi history where kings usurped the kingship by force.  (Incidentally, Mampuru II’s own right to the kingship after Sekwati’s death presupposes that Sekwati’s father Thulare was able to assume the kingship by force.)  It is not clear what more the Commission could have done.

The lower courts’ judgments thus seem unimpeachable, to have reached, without any difficulty, the only sensible outcome.  The differences between Sekhukhune I’s usurpation of Mampuru II in 1861 and Mampuru II’s murder of Sekhukhune I seem obviously material.  And, critically, these being review proceedings, it is not the correctness of the Commission’s decision that is at issue, but merely its rationality. At the very least, these differences seem sufficient to make the Commission’s distinction between the two rational.

So this is a surprising set-down.  Interestingly, if the Court were to set aside the Commission’s decision, the Commission would probably not have an opportunity to re-determine the kingship.  This is because the Framework Act was amended in 2009, curtailing the Commission’s powers.  Now, instead of determining the kingship, the Commission can only “make recommendations” to the President, who is free to depart from them (see sections 25(2)(a) and 26(2) to (4)).

The stakes are high, because the Pedi kingship brings with it significant platinum mining rights (see here).