IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)

							CASE NUMBER: 22654/2011
							DATE:  18/10/2016
Reportable: No
Of interest to other judges: No
Revised.
In the matter between:

KING BANGILIZWE MAXHOBAYAKHAWUZELA SANDILE	APPLICANT

and

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA		FIRST RESPONDENT

CHAIRPERSON OF THE COMMISSION ON TRADITIONAL	SECOND RESPONDENT
LEADERSHIP DISPUTES AND CLAIMS

MINISTER OF COOPERATIVE GOVERNMENT AND		THIRD RESPONDENT 
TRADITIONAL AFFAIRS

NATIONAL HOUSE OF TRADITIONAL LEADERS			FOURTH RESPONDENT

EASTERN CAPE HOUSE OF TRADITIONAL LEADERS		FIFTH RESPONDENT

PREMIER OF EASTERN CAPE PROVINCE			SIXTH RESPONDENT

KING MPENDULO SIGCAWU				       SEVENTH RESPONDENT

					JUDGMENT

TLHAPI J

INTRODUCTION

[1]	This is an application to review and to set aside two decisions in terms of the 
Promotion of Administrative Justice Act 3 of 2000 (“PAJA”). The decisions are that of the 
President and the Commission in which the following relief is sought:

	“1	Reviewing and setting aside the decision of the First Respondent taken on or 
		about 29 July 2010, in which he failed to recognise the amaRharhabe
paramountcy;

2	Reviewing and setting aside the decision of the Commission on Traditional 
Leadership Disputes and Claims taken on an unknown date, in which it 
rejected the applicant’s claim and that of the amaRharhabe people in respect 
of recognition of the amaRharhabe  paramountcy;

3	To the extent necessary, extending the period of 180 days in section 7 of the 
Promotion of Administrative Justice Act 3 of 2000 to the date of the institution 
of the present application;

	4	Directing the first and second respondents, together with any other 
respondent opposing this application, to pay the Applicant’s costs.”

	The application was opposed by the first, second and third respondents.

[2]	Again, added to the decision not to recognize the status of the amaRharhabe
Paramountcy was another decision by the second respondent, taken on an unknown date 
which declared King Sandile’s position as paramount chief to be that of a senior traditional
leader. The latter decision was suspended and replaced with one that stated that King 
Sandile was to remain King until his death.	

[3]		King Bangilizwe Maxhobayakhawuleza Sandile “King Sandile”, is the ninth 
generation paramount chief of the amaRharhabe. His Paramountcy consists of 40 traditional 
councils, each presided over by a Senior Traditional Leader. He is regarded by all as a 
traditional leader of higher status in charge of each one of the 40 traditional councils. The 
said traditional councils were established under the Administrative Authorities Act, 1984 
(Ciskei) and the Traditional Leadership and Governance Act 2005 (Eastern Cape). On 17 
September 1990 King Sandile was appointed Paramount Chief of the ‘Rharhabe and 
cognate tribes in the Ciskei,’ with effect from 1 October 1990,  ‘KSX4’.

[4]	The second respondent, The Commission on Traditional Leadership Disputes and 
Claims was established in terms of s22(1) of the Traditional Leadership and Governance 
Framework Act 41 of 2003, (“the Act”) and came into operation on 24 September 2004. The 
Act recognized  three positions within the institution of traditional leadership, that of 
Kingship; Senior Traditional Leadership and Headmanship in terms of section 28(7):

“ TheCommission must in terms of section 25(2), investigate the position of 
paramountcies and paramount chiefs that had been recognised, and which were still 
in existence and recognised, before  the commencement of this Act, before the 
Commission commences with any other investigation in terms that section”.

Section 25 of the Act provides:

“(1)	The Commission operates nationally and has authority to decide on any 
traditional leadership dispute and claims contemplated in subsection (2) and arising 
in any province.

	 (2)(a)	The Commission has authority to investigate, either on request or of its own 
accord-
(i)	a case where there is doubt as to whether a kingship, senior

traditional leadership .......was established in accordance with 

customary law and customs;

(ii)	a traditional leadership position where the title or right of the 

incumbent is contested;”

The Commission chaired initially by Prof T Nhlapo was established to perform the following 
asks, being, an investigation into the position of the then twelve paramounticies ‘established 
under the Administration statutory regime, to decide whether they qualified as kingships, to 
investigate the position of existing paramount chiefs and to determine matters brought under 
section 25(2) of the Act.

[5]	After the Commission presented its report to the President, the President without 
giving reasons accepted and decided to implement the determination of the Commission
not to recognize the amaRharhabe paramountcy and, he pronounced on the status of  the 
applicant, King Sandile and that of his successors.

BACKGROUND TO THE AMARHARHABE PARAMOUNTCY

[6]	It is necessary to begin by stating the divergent accounts of the origins of 
Kingship / Paramountcy in the pre-constitutional era among the AmaRharhabe and
amaGcalekas sketched in the founding affidavit deposed to by King Sandile; the answering 
affidavit as deposed to by Prof Mohlomi Albert Moleleki(“Prof Moleki”) and the replying 
affidavit of her Majesty Queen Noloyiso Sandile (“Queen Sandile”). The accounts briefly 
point out to the difference in the approach by which each party viewed as relevant to the 
determination of the Paramountcy of the amaRharahabe . Queen Sandile was substituted as 
applicant upon the death of King Sandile.  Without now pronouncing on the application to 
strike out the supplementary and supporting affidavits, their content shall for the record be 
summarised. 

	KING SANDILE

	“19.	The AmaRharhabe are descendants of the Right Hand House of Phalo, King 
of the amaXhosa who died circa 1775. According to the history of the 
amaXhosa Phalo had two sons who both became prominent in the history of 
the amaXhosa: Gcaleka, his son from the Great House and Rharhabe his son 
from the Right Hand House. Rharhabe was by birth senior to Gcaleka by 
several years.

	 20.	During the reign of Phalo, there was a disruption of the politics of the 
amaXhosa that led to a split of the amaXhosa into amaRharhabe and 
amaGcaleka. This important fissure of the House of Phalo took place 
between the two half brothers and their followers when Gcaleka, soon after 
reaching manhood, tried to control the Great House while Phalo was still 
ruling. He failed in his attempts. Rharhabe who had opposed Gcaleka’s
designs to the throne, decided to move to a new country with a section of the 
tribe under his leadership. There had also been tensions between the two half 
brothers.
	
	 21.	Rharhabe’s decision to “secede” in the circumstances was accepted by Phalo
and his Councillors. Rharhabe duly left Phalo’s Chiefdom and settled across 
the Kei River. Initially, Phalo left in the company of Rharhabe and crossed the 
Kei with him in the latter’s search for a new home. He however later returned 
to his headquarters in the Transkei where he died and was succeeded by 
Gcaleka, as head of the Great House.

22.	After crossing the Kei with Rharhabe, Phalo is said to have disappeared from 
public life and did not take any further notable part in the control of the affairs 
of the amaXhosa until his death in 1775. Meanwhile, Rharhabe had lost no 
time is asserting himself by military force over the tribes across the Kei (many 
of whom had much earlier moved away from the main body of the amaXhosa
in pursuit of an independent political existence) until the acknowledged 
PARAMOUNT Chief. He settled there after defeating the authority of Hinsati
of the amaLawu. He settled there after defeating the latter and subjecting his 
tribe under his authority. It is emphasised that Hinsati and his tribe had not at 
any stage prior thereto been part of the amaXhosa Kingdom.

	 23.	The amaRharhabe have been politically independent since the time of the
“secession” of Rharhabe described above.........

	24.	The Rharhabe Paramountcy/Kingship has been acknowledged by both 
Colonial and Apartheid authorities prior to the coming into operation of the 
Bantu Administration Act, 1927.

25.	The Rharhabe paramountcy has thus existed since circa 1740, and its 
legitimacy has never been contested by the traditional communities by which 
it is constituted, the colonial and the apartheid era authorities. The said 
traditional communities and the amaRharhabe in general have at all material 
times accepted the position of descendants of Rharhabe as Paramount
Chiefs of the amaRharhabe”	

	QUEEN SANDILE’S AFFIDAVIT DELIVERERED IN TERMS OF RULE 53

This is a response to the Commission’s determination on the status of the 
amaRharhabe paramountcy and to the content of the review record which addresses 
the historical development of the Rharhabe and Gcaleka paramountcies. 
Reference is made to the historical authorities used by the Commission and to 
leading published authorities which ought to have reasonably been considered by the 
Commission in their investigation. It is contended that the key events charted in the 
supplementary affidavit were irreconcilable with the determination made by the 
Commission and upon which the President’s decision is based. According to Queen 
Sandile these findings and decisions will not withstand review, that is, having regard 
to certain key events in the history of the amaXhosa.  The key events pointing to the 
independence of the amaRharhabe and which it is contended should have been 
considered by the Commission, is dealt with under the following headings: 

“29.1	The dynastic split between the Gcaleka and Rharhabe
components of the amaXhosa;  29.2  the political implications of 
Gcaleka’s graduation as divine doctor;  29.3 Rharhabe secedes 
from the Great House;   29.4  Rharhabe establishes a new and 
independent centre of political control west of the Kei River; 29.5
The death of Rharhabe and the period under Ndlambe as the
amaRharhabe King  Regent – era of consolidation of Rharhabe
Kingship; 29.6 The amaGcaleka’s attempt to exercise influence 
over the amaRharabe paramountcy affairs;29.7Amagqunukwebe, 
Imidange, amaMbalu and amaHeke pay allegiance to amaRharhabe
Kingship; 29.8The political context of the battle of maLinde; 29.9  
Consolidation of amaRharhabe kingship sovereignty during the period 
of Maqoma as regent king;   29.10  The expulsion of the amaRharhabe
out of the “ceded” territory of Victoria East;  29.11   King Mgolomabne
Sandile’s accession as King of the amaRharhabe;   29.12  AmaRharhabe
declarations of war against the British colonial government and the 
conclusion of peace agreements were independent acts of sovereignty;  
29.13  British Kaffraria proclaimed over west of the Kei in 1847 leaving 
Gcaleka paramountcy independent;  29.14 British dominance over the
amaGcaleka and amaRharhabe sovereignty;   29.15   Attempts to expel 
the amaRharhabe from their country and undermine Rharhabe
sovereignty;  20.16  The Killing of Hintsa during the war of 1834 -35, and 
the aftermath;   29.17  and Archie Velile Sandile’s accession as King of 
the amaRharhabe.”

1.	The history of the amaRharhabe and amaGcaleka Kingships is said to predate

the arrival of the British Government in that area of the Eastern Cape in 1795. 

Although there was recognition and respect by the amaRharhabe Kingship of the 

representation of seniority of the amaGcaleka Kingship in the amaTshawe

ancestral line, this was merely ‘nominal and for ritualistic purposes’ (‘the account 

by Rev. R RDugmore: “A Compendium of Kaffir Laws and Customs” document 

by Colonel John Maclean’). The British found that the amaXhosa, who had long 

settled to the East and West of the Kei River, though having a common ancestry, 

were recognised and respected as two independent polities, each controlled by a 

King as political head. Up to this day these two Kingships are known by the 

names of their progenitors.

2.	The independence of the amaRharhabe is also demonstrated by the  

manner in which in which the Missionaries independently sought permission to 

teach and established the Christian Faith among them and, the manner in 

which  the Colonial authorities and their emissaries interacted,  taught the 

Christian religion and,  established diplomatic ties with the amaRharhabe 

Kingship. 

3.	Among the amaRharhabe, the King presided as Chairman of his Council 
Which adjudicated over criminal and civil cases independently of the amaGcaleka
Kingship and there was no right of appeal ‘to the Court of the amaGcaleka King’. 

However, on certain occasions the Kings of these two independent polities would 

be invited to resolve matters arising mainly in mediatory capacities. Further 

pointers to independence of the amaRharhabe Kingship is to be seen in the 

strength of their military and how independently of the amaGcaleka, they fought 

wars on Rharhabe land territory with the British.

4.	Professor Timothy Stapleton (‘in the Department of History, Trent University’)
in a supporting affidavit, contended that there was a unanimous finding by most 
historians since the early 20th century that ‘ the split’ resulted in the formation of 
separate and independent Kingships dating as far back as the 1700’s. In pre-
colonial Africa there evidence of formation of ‘a splinter group from the royal 
family moving away to form a new independent state’, this occurring after conflict 
within the state. Although the amaRharhabe respected the ancestral seniority of 
the amaGcaleka, his opinion was that “by the 1820’s the two represented 
separate independent states that could and did act in their own. For historians 
and political scientists, an important element in proving the existence of a 
sovereign state is the ability to exercise coercive force, in other words to make 
decisions about going to war against other groups . On many occasions the 
amaRharhabe leaders of the late 1700 and 1800’s made their own decisions 
about going to war and making peace, sometimes with other African states and 
sometimes with the British, which were different and separate from the decisions 
of the neighbouring amaGcaleka leaders.”

	PROF MOLELEKI IN RESPONSE TO KING SANDILE IN THE ABOVE
PARAGRAPHS IN THE FOUNDING AFFIDAVIT

“78.	....It is however, stated that the age of Rharhabe was immaterial in deciding 
the issue of succession. The material and determining factor here is that of 
birth from the Great House to which Rharhabe did not belong hence he was 
not entitled to assume the position of kingship.
	
79.	It was not unusual for a Right Hand House (similar to that of Rharhabe) to 
create a new traditional community independent of, but subordinate to the 
Great House in respect of family, ceremonial matters and those affecting the 
community of amaXhosa as a whole. The leader of such an ‘independent’ 
community did not assume the position of King.

Gcaleka did not attempt to take control of the Great House during Phalo’s
reign. Gcaleka, as successor-in-title, had to take lessons on traditional 
leadership whilst his father Phalo, was alive. Gcaleka did not have callous 
plans for the throne as, on the contrary, he was legitimately destined to 
succeed his father to the throne. Thus Rharhabe opposed Gcaleka’s
legitimate claim. Rharhabe had designs to be king.

80.	Rharhabe did not decide to ‘secede’. His ambition to substitute Gcaleka as 
king of amaXhosa motivated him to remove himself from the proximity of his 
senior brother (in terms of the amaXhosa customary law of succession) who 
was poised to become king after the death of Phalo.
		Rharhabe remained within Phalo territory (Chiefdom) when he crossed to 
occupy the land west of the Kei. This is borne out by the following historical 
facts:
(a)	Gwali, son to the Right Hand House of Phalo, was already settled west of

the Kei River with his followers, amaGwali, when Rharhabe made his 

move.

(b)	Similarly, Mdange, a brother to Tshawe (the father of Phalo), asked for 

Permission from Phalo to move across the Kei River. This he did after 

Installing Phalo as king of amaXhosa. His followers were called imiDange. 

It must be noted that Mdange was Rharhabe’s paternal uncle.

(c)	Likewise, Langa a brother of Phalo and leader of amaMbalu, had also 

obtained permission from Phalo to settle across the Kei.

(d)	By the same token, the InquaKhoi, who were ruled by Hinsati, and who 

had been defeated by the alliance of Mdange and Gwali and thus 

subjugated by those who owned allegiance to Phalo, also occupied the 

area across the Kei.

(e)	Furthermore, Phalo himself resided at Zeleni, west of the Kei, which was 

one of his Great Places.

(f)	Moreover, Phalo accompanied Rharhabe across the Kei because he 

wanted to see Rharhabe settled and installed as an overseer over his 

people who had already settled across the Kei.
It must be noted that Gcaleka succeded Phalo not as King of amaGcaleka
but as King of amaXhosa as a whole.
AmaRharhabe always maintained and spoke the same language, isiXhosa, 
and kept the same culture and customs of amaXhosa and thus always 
remained part of the fabric of the amaXhosa nation

81.	Although some of the tribes moved away from the Great House (main body) 
to create new traditional ‘independent’ communities, they however always 
remained subordinated to the Great House in respect of family, ceremonial 
and customary matters as well as matters affecting various communities 
which made up the nation of amaXhosa as a whole. In terms of custom the 
expanding communities always remained ‘junior’ to the Great House.

Hinsati and his followers had already been subjugated by imiDange and 
amaGandi (who were part of the Xhosa nation) long before the arrival of the 
Rharhabe followers.

It could not have been problematic for the leaders of the communities west of 
the Kei to acknowledge Rharhabe as the most senior ‘chief’ among them.
However, the most senior ‘chief’ (ingotya) among amaXhosa, remained 
Gcaleka. The cause of conflict between Rharhabe and the communities 
west of the Kei was his insistence that he be recognised as inkosi enkulu
(king) who was on par with his senior brother, Gcaleka. Those communities 
always regarded themselves as falling within the entire ‘empire’ of amaXhosa
and therefore under the overall leadership of Gcaleka.

The chiefdoms of amaGwali, imiDange, amaNtinde, amaMbalu and 
amaGqunukhwebe established themselves as separate enclaves in the 
Zuurveld, between the Fish and Bushman Rivers. When around 1814, 
Charles Henry Somerset, Governor of the Cape Colony, suggested the 
‘spoor law’ to Nqika, Rharhabe’s heir, Nqika balked at the idea he was to 
undertake returning all stolen cattle to Government. He is reported to have 
retorted ‘still every chief rules and governs his own people.’ This meant that 
he was  responsible only for his own tribe. This is further evidence that he 
was not king of the territory across the Kei.

82.	It is denied that amaRharabe ever seceded from the nation of amaXhosa. 
History and available material does not bear out such a contention of 
secession. History shows that Rharhabe was accompanied by his father, 
Phalo, across the Kei in order to ‘introduce’ him to the amaTshawe
communities who had already settled on this territory and who fell under the 
ultimate rule of AmaXhosa kingship.

	83.	The acknowledgement of Rharhabe Paramountcy/Kingship by the Colonial 
and Apartheid authorities is telling and must be viewed within the historical 
context outlined above.

	QUEEN SANDILE IN RESPONSE TO PROF MOLELEKI IN THE ABOVE 
PARAGRAPHS IN THE ANSWERING AFFIDAVIT

“38.	The essence of the relationship between the Rharhabe Paramount and the 
            Gcaleka Paramount is that the Rharhabe Paramount acknowledges the 
            Gcaleka Paramount as ritually senior in rank (umkhuluwa) but the Rharhabe
            Paramount is independent; and does not accept any implication of political 
            subordination to the Gcaleka Paramount.

	39.	The Rharhabe Paramountcy’s ascendance among the Western Xhosa was 
consolidated under the Rharhabe Regent Paramount Ndlambe who took 
office in 1782, during the minority of Nqika. The consolidation entailed initial 
subjugation of imiDange, amaMbalu,  amaGwali, amaNtinde and amaHleke. 
By 1792 Ndlambe had broken the resistance of the amaGqunukwembe and 
brought them under the Rharhabe Paramountcy. Therefore, in a period of 10 
years, Ndlambe had consolidated all Western Kei amaXhosa under the 
Rharhabe Paramountcy.

	40.	Accordingly, while at some earlier stage (during the reign of King Phalo) it 
could have been argued, that there were disparate co-segments of 
amaXhosa in Western Kei under the domination of a central political 
authority, by 1792 the entire Western amaXhosa communities had been 
brought under the political domination of the amaRharhabe Paramountcy.

	41.	When Nqika assumed his position as Rharhabe Paramount he intensified his 
uncle’s policy; and engaged independently with the British, while 
strengthening his personal power among the amaRharhabe. Attempts by the 
Gcaleka Paramountcy to assert itself over the Western amaXhosa were 
resisted by Nqika and he fought a war against the Gcaleka Paramount in 
1794 which he won, capturing Hintsa the Gcaleka Paramount, although he 
was allowed to escape. This defeat of the Gcaleka Paramount pushed the 
amaGcaleka Paramount permanently across the Kei.

	42.	As a result of this the Kei came to be accepted as the political ‘border’ 
between the two centres of power, the Rharhabe Paramountcy in the Western
Kei and the Gcaleka Paramountcy in the Eastern Kei long before the coming 
into operation of the Native Administration Act in 1927.

43.	The dominance of the amaRharhabe Paramountcy in Western Kei was 
sealed when the area west of the Kei was brought under British jurisdiction in 
1847. The Western Kei amaXhosa were then turned into British subjects, 
while the Gcaleka Paramountcy remained independent, until its annexation.

44.	Therefore, while at some stage before the dynatic split, Rharhabe was the 
Right Hand House under the central political authority of Phalo, over time 
there was no longer one but two central authorities, one under the Rharhabe
Paramountcy, and the other under the Gcaleka Paramountcy.

	54.2	As regards Ngqika’s response to Charles Henry Somerset, he reportedly 
stated that although he was a King, each head of the Chiefdoms owing 
allegiance to him, was responsible for the government of his own people. This 
was indeed the true nature of the political structure of the Western 
amaXhosa, which included a substantial degree of local self-governance. The 
Rharhabe Paramount did not interfere in the government of the chiefdoms 
under the Rharhabe Paramountcy; notwithstanding their allegiance to him. It 
was nevertheless accepted that Ngqika was the Paramount of all the Western 
Kei amaXhosa. The deponent distorts the quotation from Milton’s “Edges of
 War”

	55.	The term ‘secede’ was used in inverted commas to denote the detachment of 
Rharhabe from the jurisdiction of the Great House as a result of dynastic split, 
resulting in the creation of two kingships, one ranking above the other 
culturally, but politically independent.

	56.	To the amaXhosa under the amaRharhabe Paramountcy of Western Kei, 
Ngqika (and Sandile) was iNkos’ enkulu (King) and the same term was 
accorded to the amaGcaleka Paramount Hintsa and Sarhili.”	
	
THE COMMISSION’S INVESTIGATION AND DETERMINATION

[7]	In a letter dated 23 June 2005 the erstwhile chairperson the Commission Professor T
Nhlapo informed King Sandile of the Commission’s investigation and of its intention to 
visit and to meet all the royal houses and to hold public hearings  to :

‘ investigate the position of paramountcies and paramount chiefs that had been 
established and recognised, and which were still in existence and recognized 
before the commencement of this Act”.The Commission is instructed to do this
before other investigation in terms of section 25(2) ...............
In view of the above, the Commission will be visiting all existing royal houses in the 
near future in order to hold public hearings and meet with royal family members. In 
case of the Eastern Cape, these hearings will be held in the weeks 4 – 8 July and 18 
– 22 July 2005.”

King Sandile averred that no visits were undertaken by the Commission to the
Royal Houses in the 40 traditional communities in the Rharhabe Paramountcy. The 
millions of amaRharhabe resident outside the 40 designated areas received no notice from 
the Commission. Furthermore, neither he nor any member of the amaRharhabe  were
informed that the objective of the Commission was to ‘investigate and determine whether the 
Rharhabe Paramountcy qualifies for recognition ‘as a kingship Under the Framework Act or 
whether it  was established in accordance with customary law.’ The Notice gave the 
impression that the Commission was to investigate and gather evidence on existing 
paramountcies. There was further no indication that the legitimacy of the Rharhabe
Paramountcy was in contention.

[8]	The hearings commenced between 18 and 19 July 2005.  The amaRharhabe
delegation  was heard between 20 and 21 July 2005. They made oral submissions and 
responded to questions by members of the Commission. No research by the Commission, or 
documentation submitted by third parties on issues adverse to the paramountcy of the 
amaRharhabe was availed prior to or at the hearing.  This material included historical 
records and archival research, some of which was available before to the 2005 hearings. 
This material had not been ‘tested against the view of the amaRharhabe’. 

[9]	It was some two years later where Prof Nhlapo in a letter to King Sandile dated 3
May 2007 stated that the Commission had in the final stages of the final individual 
determinations realised that it was legally required to make available to him all  material it 
had available, which had not been availed to him and  which included ‘historical records and 
archival research’ for his ‘views and actions’.

[10]	The material was made available under cover of a letter from Prof T Nhlapo dated
11 June  2007, which required written submissions to be made by no later than the 29 June 
2007 and inviting him to make oral submissions on the material at a hearing scheduled for 
16 July 2007. The letter stated further:

	“It is important for me to emphasise that the issues now being put before you do not 
in any way represent the Commission’s thinking. We simply think that it will assist us 
to arrive at the truth to have your reaction to these statements, however 
controversial you might consider them to be.”
	
The letter did not explain why the material was not availed to the amaRharhabe before June 
2005 to enable them to evaluate the material and  to conduct their  own research, to refute 
content adverse to them. A very short notice was given to the king and amaRharhabe to 
consider the material. Prince Siqithi Maqoma on behalf of King Sandile attended and made 
oral submissions on 16 July 2007. The issues to be dealt with were contained in ‘KSX8’ and 
certain documents were attached for his response. In ‘KS9’ the Commission was made 
aware of the little time afforded  to the amaRharhabe to evaluate the material, to conduct 
their own research and to refute content which was adverse to them. They complained that 
some of the documents were unreadable and clearer and retyped documents were later 
furnished.  

[11]	It is averred that during the hearing and after hearing the amaGcaleka and 
amaRharhabe, a new document purporting to have been prepared by the House of 
Phalo was furnished by the amaGcaleka delegation. The house of Phalo refers to the 
Rharhabe and Gcaleka Houses. The document ‘KSX14’,was a response to research 
conducted on behalf of the Commission by one William Kekale Kaye, and it disputed ‘the 
independent political existence of the amaRharhabe’. The Rharhabe’s did not give input to 
its preparation but merely noted its contents at the hearing. Concern by King Sandile was 
raised that the amaGcaleka representative was allowed to introduce new matter in response
and the Rharhabe delegation requested an opportunity to reply thereto and the request was 
denied ‘KSX15 and ‘KSX16’. Besides the amaRharhabe were not informed in the letter of 
invite to bring their representatives along or that the amaGcaleka would be making 
submissions adverse to their paramountcy.

[12]	On 18 April 2008 under hand of the President, King Sandile was notified of the 
release of the Commission’s report on the position of the Rharhabe Paramountcy ‘KS17’. 
The letter also talked about the implementation process provided for in Section 26 (2) of the 
Act, to the effect that the decision of the Commission which affected a king or queen must,
within two weeks of the taking of such decision be communicated to the President, for
implementation in terms of ‘section 9 and 10 thereof. The implementation process as 
described was not engaged. The Commission released the report to the Rharhabe
paramountcy on 29 April 2009 and announced that the determination would not be 
implemented since it still had to investigate the position of each incumbent paramount chief 
before completing its mandate in terms of section 28(7) of the Act. The Department of Local 
Government and Traditional Affairs of the Province of the Eastern Cape, in a memorandum 
dated 19 May 2008 to all its staff, confirmed the Commissions determinations and directive 
regarding implementation.

	King Sandile averred that the Traditional Leadership and Governance Framework 
Amendment Act, 2009 was introduced to implement the determination of his status which
was not in terms of section 9 and 10. On 30 July 2008 the Rharhabe paramountcy informed 
the Commission that it rejected the Commission’s determination and intended bringing legal 
action, ‘KS20’.

[13]	Representatives of the Rharhabe paramountcy requested a reopening of the 
investigation by the Commission at the hearing on 6 October 2008. This request was 
declined and the amaRharhabe delegation withdrew from the proceedings. The final 
determination of King Sandile’s status as Senior Traditional Leader was published on the 
Commission’s website on 29 April 2009. 		

THE DECISION OF THE PRESIDENT
	
[14]	On 30 July 2010 the President announced that the Commission had presented its 
report to him and that he had accepted its findings.  King Sandile summarised ‘KSX23’ as 
follows :

. 	“ 44.1 South Africa has only seven legitimate Kingships and Kings. Another 6 
Kingships/ Queenships whose status would come to end on death of 
the current incumbents of the position of King in each case.
		44.2	Regarding the Gcaleka and the Rharhabe paramountcy the 
Commission had recognised only one Kingship of the amaXhosa
under King Zwelonke Sigcawu , of the amaGcaleka.
44.3	Future investigations and determinations of Kingships and their 
incumbents would be determined by a new commission set up in 
terms of the 2009 Amendment to the Framework Act.
44.4	The amaRharhabe paramountcy is not recognised as a Kingship but 
shall be deemed to be a Kingship until death. Upon my demise, my 
successors will be recognised by the Premier as Principal Traditional 
leaders and the paramountcy will be recognised as a Principal 
Traditional Leadership”  
	
[15]	According to King Sandile the Commission was undertaken in terms of Chapter 6 of 
the Act, which was followed by the report and determinations made by the Commission. This 
was indicated in the information sheet issued by the Ministry of Co-operative Governance 
and Traditional Affairs that preceded the President’s statement, communicating his decision, 
deeming the Rharhabe paramountcy an interim one and his position, that of King, till his
death. King Sandile contended that the 2009 amendments to the Framework introduced in 
terms of section 28(9) of the Act were made at a time when the Rharhabe paramountcy had 
‘legitimate and historically based claims and where notice had already been given to 
challenge the Commissions determinations. He contended further that the amendments 
were made in an effort to placate the ‘incumbent paramount chiefs into acquiescence’ in the 
determinations of the Commission.		

[16]	King Sandile contended that the determination by the Commission that the kingship 
of the amaXhosa was established under amaGcaleka alone was flawed. It  failed to 
recognise the ‘ historical exigencies’ which resulted in the well documented effects that the 
‘split’ had in the creation of the two independent paramountcies of the amaGcaleka and 
amaRharhabe. There was further failure to give recognition to the fact that   customary law 
was determined by taking into account and recognising ‘the inherent flexibility and dynamic 
nature’ of customary law.

[17]	Prof Moleleki deposed to the answering affidavit as acting chairperson of the 
Commission. He was actively involved in the Commission from inception and was appointed 
after the resignation of Prof Nhlapo during 2007. He conceded that the President’s 
announcement and  reliance on provisions of the 2009 Act and of referring to the 
Commission’s determination as recommendations was incorrect. The Commission had 
decision making powers in terms of section 26 of the 2003 Act and that the President’s duty 
was to have announced the Commission’s decision and not as ‘recommendations’. He 
further averred that the Commission had authority to decide on traditional leadership 
disputes and claims in terms of sections 25(2)(a)( vi),  which provided that where good 
grounds existed consideration had to be given to events that preceded 1 September 
1927. He contended that the Commission’s decisions were ‘reasonable, rational and fair and 
that they accorded with the provisions of the Constitution of the Republic of South Africa 
(‘the Constitution’) and PAJA. He denied that the Commission had misconstrued the need to 
establish ‘uniformity’ as provided in section 9(1)(b)(i). 

[18]	He averred that the applicant had participated in the effort to establish the 
Commission and had fully embraced it.  Although the proceedings were not court 
proceedings they involved ‘the examination of witnesses, cross-examination; re-
examination and questions of clarity by the Commissioners.’ The hearings in the first phase 
were conducted in two sessions, the first hearing was held with the amaGcaleka and  the 
second hearing with the amaRharhabe. The applicant had timeously been furnished with all 
material including submissions which were adverse to its claim. Ample opportunity was given 
to prepare and to make oral and written submissions. Based on the evidence obtained 
during the initial hearings of the amaGcaleka and amaRharhabe and before proceeding to 
the second stage, the Commission conducted its own research. The applicant was invited to 
avail any additional information for consideration before the final decision was made by the 
Commission . The purpose of the second stage of the hearings was to provide a set of 
questions based on the research and to obtain response from the parties on information 
gathered during its research. Prior to the second meeting being convened, the applicant 
was notified that he would be given an opportunity to ‘amplify, contextualise, explain, 
question, refute or support any or all of the outstanding items of evidence’ and a list of issues 
to be addressed was annexed,KSX8.  At the hearing the delegations were given an 
opportunity to make presentations and  to interrogate each other and to be interrogated by 
the Commissioners.

[19]	Prof Moleleki contended that the purpose of the first phase was solely to determine 
the status of the paramountcies of the amaRharhabe and amaGcaleka. The determination 
was that:

•	‘Customary Law of Succession among amaXhosa is governed by the 

principle of primogeniture.’

•	‘In terms of the amaXhosa customary law of succession, only the first born

son of the Great House could succeed Phalo. Thus Gcaleka was the rightful 

successor. Rharhabe, the first born son of the Right Hand House of the king 

of amaXhosa, could at best establish a separate chieftainship / traditional

Leadership that would be semi-independent, but not of equal status to the  

 Great House’

[20]	At the second hearing the applicant was legally represented by Advocate Izak Smuts. 
According to Prof Moleleki the amaRharhabe tried to revisit the decision of the Commission 
made in the first phase. The issue was whether the applicant could contest such a decision. 
After the Commission had clarified its position and that the purpose of the second phase
hearing was to determine the position of the applicant in terms of section 28(7) of the Act, 
the applicant, his legal team and delegation withdrew from the proceedings. The conclusion 
of this second phase decided that the applicant was a Senior Traditional Leader. It was 
denied that the decisions made by the Commission were susceptible to review on any of the 
grounds stated by the applicant..

SUPPLEMENTARY AFFIDAVIT AND CONFIRMATORY AFFIDAVITS

[21]	There was an application for the striking out of the supplementary and confirmatory 
affidavits. According to Prof Moleleki these were impermissible as this application for review 
of the decisions and or determinations of the Commission must be based on the record of 
the proceedings that unfolded before the Commission. In as far as the supplementary 
affidavit purported to adduce the same or similar evidence to that of King Sandile or his 
witnesses at the hearings, the allegations are disputed. It was further denied that the
deponent to the supplementary affidavit  was a queen, in view of the fact that King Sandile’s
status as ‘King’ ceased at his death in terms of s28(9)(c)(ii) of the Framework Act. 
Furthermore, the affidavits had introduced new matter which was not presented to and 
considered by the Commission when an opportunity was given at the hearings to do so and 
where the applicant had failed or refused to do so. The applicant had further not given 
reasons why it had failed to adduce such evidence at the hearings. The applicant further was 
invited to direct the court to the precise citation of the pages of the authorities relied upon in 
such affidavits.

CONDONATION

[22]	King Sandile contended that there were a number of factors that contributed towards 
this application not being launched within the applicable time frames. The President did not 
immediately implement the Commission’s determination on the amaRharhabe paramountcy
and  on his status. The implementation was delayed by the Commission pending the 
outcome of the determination on his status. He contended that the President by not 
implementing the determination for an extended period, effectively suspending such 
determination. Then came the amendments to the Act which was meant to allow the 
‘incumbent paramount chiefs to retain their status till death.’

[23]	The Commission and the relevant authorities were consulted and litigation was 
considered as a last resort. The decision of the President was announced on 29 July 2010. 
King Sandile averred that he only instructed his attorneys to brief counsel to obtain legal 
opinion whether the impugned decisions were reviewable. He also had to seek advice from 
experts in customary law and history pertaining to the issues that had relevance to his 
status and that of the amaRharhabe.

[24]	Careful research reaffirmed his view that the findings of the Commission were 
unsustainable. Funding had to be sought for the appropriate legal representation and 
for briefing of counsel with expertise in the issues addressed in this application. The 180 
day period within which it was expected the review application should have been launched  
commenced from 29 July 2010  and would have expired on 29 January 2011. He contended 
that having regard to the complexity of the issues and the volume of relevant documentation 
which had to be considered, the delay was not substantial.  

GROUNDS FOR REVIEW

[25]	King Sandile contended that the decisions of the Commission and the President had
to be reviewed and set aside in terms of PAJA on the following grounds:

•	section 6(2)(d) of PAJA in that the decisions were materially influenced by an 

error of law;

•	section 6(2)(e)(iii) of PAJA in that the decision was materially influenced by errors

of fact and was taken because irrelevant considerations were taken into account;

•	section 6(2)(f)(ii)(cc) of PAJA in that the decision was not rationally connected to

the information before the Commission; and

•	section 6(2)(h) of PAJA in that the decision was unreasonable.

[26]	It was averred that the Commission’s procedure was flawed in that there was 
‘inadequate notice at various stages of the proceedings; the Commission failed to provide 
the amaRharhabe  relevant documents or adverse submissions which, either at all or 
sufficiently timeously to enable them to respond; the Commission admitted and relied upon 
inadmissible evidence; and the Commission failed to take into account admissible evidence 
adduced by the amaRharhabe;’

[27]	Another ground of review related to the contention that the Commission had erred in
its interpretation and application of section 9 of the Act in relation to the criteria it used to 
determine Kingship and in particular the incorrect interpretation of section 9(1)(b)(i) in as far 
as it was determined that there was a need to establish ‘uniformity’ in ‘its assessment of the 
Rharhabe Kingship’.

	In as far as the President was concerned another ground for review was in terms of 
section 6(c) of PAJA ‘in that the action was procedurally unfair’.

	A further ground of review was in respect of the amendments to the Act that were 
allegedly passed in order to allow the incumbent paramount chiefs to retain their positions 
until death. It was contended that the amendments were meant to allow administrative action 
which was not ‘authorised by the Act.

THE LAW
[28]	Section 211 of the Constitution gives recognition to the ‘institution, status and role of 
traditional leadership according to customary law. Customary law is therefore ‘one of the 
primary sources of law under the Constitution’. Our courts and traditional communities have 
from time to time also engaged in the development of customary law and this development 
should be consistent with and always ‘in accordance with the norms and values of the 
Constitution’. Therefore, when adjudicating over a customary law matter a court is 
expected to be ‘mindful of its obligations as set out in section 39(2) of the Constitution, and 
the guidelines of the process to be engaged as set out in Shilubana and Others v
Nwamitwa 2009 (2) SA 66 (CC) paragraphs 42 – 49; and MM v MN 2013 (4) SA 415 (CC) 
para 24. 

[29]	It was further common cause that the decisions of the President and the Commission 
constituted ‘administrative action’ that fell to be reviewed under PAJA. The applicant also 
relied on further grounds as stated above.

[30]	In addressing the standard the court had to apply in review, Mr Arendse submitted 
that deference had to be accorded to the decision of the Commission, Bapedi Marota 
Mamone v Commission on Traditional Leadership Dispute and Claims and Others 
2015 (3) BCLR 268 (CC) para 78, 79, 80, 92, 107. 
  
While Mr Marcus conceded that deference had to be given in appropriate cases, 
according to him there was no scope for deference in this matter in that there was 
challenge not only to the legality of the decisions taken, deference was not applicable to 
statutory interpretation and where it had to be determined whether the procedures were fair 
or unfair. In Bapedi supra at para 82 the following is stated:
	
“This Court, may not neglect its duty to scrutinize the rationality of the
 Commission’s decision. But, in doing so, it must be cognisant of the 
Commission’s special expertise as well as the wealth and complexity of the 
factual evidence it considered in its wide- ranging enquiry. The fairness of that 
process, where representations were solicited from interested parties, was 
not challenged.” (my underlining)

The President’s Decision ( Chapter 6 of the Old Framework Act (‘the old Act’) and 
Chapter 6 in terms of the new Chapter 6 of  the Framework Act (“the new Act”)

[31]	There existed a fundamental difference in the process of decision making under the 
old and the new Act. In terms of section 26 of the old Act the Commission was authorised to 
make decisions which were then conveyed to the President to be implemented by him. In 
terms of section 26 of the new Act the Commission could only make recommendations to be 
conveyed to the President for his decision.   	The President announced in Government 
Gazette No. 33732,  No 1027 published on 5 November 2010 that ‘in terms of section 28(8) 
read with section 2A of the Traditional and Governance Framework Act, 2003 (Act No.41) 
(the Act),’ he recognized the listed kingships and kings and ......that in terms of section 28(9) 
of the Act, that he among others gave deemed recognition to the amaRharhabe kingship and 

of its incumbent, King Sandile. 

[32]	Mr Marcus submitted that this notice falls to be set aside, as the President was not 
allowed to apply the new Framework Act, in giving effect to a decision made by the 
Commission as it was mandated to do in terms of the old Framework Act. He argued that the 
setting aside would be in keeping with the decision in Sigcau v President of the Republic 
of South Africa 2013 (9) BCLR 1091 (CC) and Nxumalo v President of the Republic of 
South Africa 2014 (12) BCLR 1452 (CC)

[33]	Mr Arendse’s submissions were articulated in his Heads of Argument, where he 
submitted that nothing turned on the President having invoked the new Act, that the 
‘President took no decisions of its own.. ...regardless of the unfortunate terminology used in 
the ....notices; as the final outcome would have been the same even had he invoked the old 
Act.’ In the main, the President ‘accepted and implemented the decisions made by the 
Commission...that in the present case the President’s role was merely secondary; even 
should this Court set aside the President’s decision, as was the case in Nxumalo, it is 
discernable from that of the Commission and does not taint the validity of the Commission’s 
decision’.  

[34]	In dealing with the President’s notice in Sigcau supra,the following was said:

		“[21]	The Commission’s procedures were thus initiated and substantially 
completed under the old Act. The procedure of the old Act thus 
remained in place to be followed in respect of the final stage of the 
procedure, that is, the President’s notice. 
		 [22]	It is clear from the above notice that the President purported to give 
effect to the Commission’s decision under the provisions of the new 
Act.
		[23]	The provisions of the new Act in relation to the proceedings of the 
Commission are different from the provisions of the old Act. It is not 
necessary to set out and analyse the difference in detail. Suffice it to 
point out that under the old Act the Commission was authorised to 
make “decisions” in respect of disputes referred to it, but under the 
new Act it could only make recommendations. The procedure for 
dealing with the Commission’s recommendation under the new Act, 
also differs materially from the process of implementation of the
Commission’s decision under the old Act.
[24]	The implementation of the Commission’s decision under the old Act 
could thus not be done under the provision of the new Act. In an 
argument it was suggested that the reference to the provisions of the 
new Act in the notice was a mistake. The problem with this, however 
is that nowhere in the paper does the President say that it was a 
mistake.

		[25]	On the contrary, a perusal of the notice indicates that the President 
elected to invoke the new Act......
[27]	 ......it cannot be said that a notice issued under the new Act can be 
taken to have been issued under the old Act.”

	In Nxumalo supra,
	
		“[14]	The principle upon which Sigcau is based is that, if a functionary 
purports to exercise under one Act a power that that Act does not 
confer upon him or her, that exercise of power that that Act does not 
confer upon him or her, that exercise of power is unlawful even if 
there is another Act that confers such power on the functionary.”
[35]	Mr Marcus argued that the difference between this matter and the Sigcau was that 
in this matter the President’s decision and that of the Commission was attacked on four 
separate grounds and that in the constitutional court the review decision was still pending so 
there was nothing before the constitutional court by way of review. In Nxumalo supra the  
review did not have to consider the issue of  procedural fairness .   In my view, and in light of 
the above decisions, the argument by Mr Arendse that nothing turned on the President 
having invoked the new Act has no merit. Agreeing that the decision is of no consequence 
would amount to one endorsing an illegality. The decision of the Commission could only 
have been put into effect or be implemented by an announcement by the President under 
the correct Act, in this instance, the old Act. 

[36]	Mr Marcus submitted that in as far as it was argued that the use of terminology by 
the President was unfortunate, it was only the President himself who could say so. As I see 
it, this referred to the answering affidavit deposed to by Prof Moleleki. It is trite that one 
person in an affidavit could not give evidence concerning another person where no 
confirmatory affidavit was filed to confirm such evidence,  Crawford Lindsay Von Abo v 
The President of the Republic of South Africa 2009 (2) SA 526 (T) para 46. Mr Marcus 
argued further that, where the Commission had found that King Sandile was a Senior 
Traditional Leader, a position recognised by the old Act, the President announced in terms of 
the new Act that King Sandile would be recognised as a Principal Traditional Leader, which 
was clear indication that the two decisions were substantially different. What was present
was the express statement by the President in his announcement which showed that there 
was a clear understanding that the Commission’s mandate was under the old Act and that 
his announcement was tabled in terms of the new Act. 

The inference to be drawn is that there is clear indication that the President 
understood what he was doing and that he purported to exercise a discretion to take a 
decision that differed from that of the Commission. I am of the view that the President’s 
decision must be set aside.

The Commission’s Failure to Afford a Proper Hearing

[37]	Mr Marcus submitted that the Commission’s ‘investigative and decision making 
process’ was attacked on grounds of procedural fairness,  and on incidents as stated in 
paragraphs 7 – 11 and 13 above. 
Mr Arendse submitted that the proceedings were fair and that having regard to the 
methodology adopted by the commission, which was disclosed to the parties, the 
principles of procedural fairness are not applicable in this case. The invitation to participate 
in the hearings was extended to the general public and to the 40 traditional communities 
aligned to the amaRharhabe. The concluding remarks of Prince Ncamashe at the first 
hearings were an indication that there was ‘a huge amount’ of consultation with the 
amaRharhabe. The Commission made available its research material after the first hearing 
and the follow up hearing on 16 July 2007 was not meant to conduct a fresh investigation 
but was an opportunity given to the Rharhabe and Gcaleka paramountcies  to give further 
input. 

[38]	In my view, the initial invite does not give indication that in addition to investigating 
existing paramountcies the Commission was going to investigate and make decisions on the 
legitimacy of the amaRharhabe  paramountcy as against that of the amaGcaleka, nor is 
there any indication initially that the Kinghips were being contested. It however became 
apparent when the follow up meeting two years later was arranged that there was more to 
the investigation than was initially imparted in writing to these two paramountcies. Mr Marcus 
submitted that critical to the follow up hearing of 16 July 2007 was the fact that a new 
document was produced by the amaGcaleka delegation which purported to be a document 
emanating from the House of Phalo. 	Despite the fact that the House of Phalo referred to the 
Rharhabe and Gcaleka houses of the amaXhosa, the amaRharhabe were not party to its 
preparation and the maRharhabe were seeing it for the first time at the hearing.  

[39]	What followed was a decision by the Commission not to recognize the amaRharhabe 
paramountcy. A request to reopen and to give input into the legitimacy and independence of 
the amaRharhabe, was denied at the opening of the second phase hearings. Mr Marcus 
argued that the decision of the commission and also that of the President, which was based 
on the prior finding fell to be set aside,  on the basis of what has been consistently applied 
by our Courts, as appears in  MEC for  Health  Eastern Cape and Another v Kirkland 
Investments (Pty) Ltd t/a Eye and Lazer Institute 2014 (3) SA 481(CC)  at para 102 (which 
confirmed as appears in foot note 74 page 511, the decision in Seale v Van Rooyen NO and Others 
2008 (4) SA 43 (SCA) ((2008) 3 All SA 245) at para 14 “the acts performed on the basis of the validity 
of a prior act are themselves invalid if and when the first decision is set aside , in para 13 the court 
rightly rejected an argument in misconceived reliance on Oudekraal, that the later (second) act could 
remain valid despite the setting aside of the first”)   It is the decision of the Commission that is 
being attacked on the basis that it was procedurally unfair. 

[40]	In ‘KSX 6’ the Commission with regard to material which was not availed to the
amaRharhabe stated:

“After a wide-ranging debate on the implications of this state of affairs on the 
obligation placed on us to be fair at all times and to observe all the requirements of 
administrative justice, we have come to the conclusion that we are legally required to 
seek your opinions and responses to any material that is relevant to your situation”

The complaint related to the ‘consolidated report’ said to be in response to a request by the 
Commission for comment on its research, it also disputed the legitimacy and independence 
of the amaRharhabe ‘KSX14’. In my view, of importance is to look at the reaction of the 
amaRharhabe to this document at the hearing . A request by King Sandile on 18 July 2007 
to be given an opportunity to respond to this new matter was denied. With regard to the 
complaint on what transpired at the hearing of the 16 July 2007  King Sandile stated two
days after the hearing ‘KSX 15’ :

	“with the benefit of hindsight, I am of the view that we should have been afforded an 
opportunity to reply. Indeed that course should have been taken by the commission.”
   
The response from the chair of the Commission Prof Nhlapho was the following, ‘KSX16’:

“I am writing to express my regret that you felt unfairly treated. I am unable to agree 
that this was in fact the case. The Commission considers itself quite capable of 
assessing the stories that it was told and of taking account of dramatisation or 
exaggeration in any testimony. We have been doing this over some forty hearings in 
the last few years. I am also unable to agree that the procedure itself is flawed. Again 
this is the procedure we have applied consistently in our past hearings. Not being a 
court of law, we have devised procedures that help us arrive at an understanding of 
the issues while allowing all parties to have a say. It would have been irregular to 
alter this procedure just for the hearings under discussion.”

Mr Marcus argued that that the material had not been tested against the view of King 
Sandile and the amaRharhabe and that the Commission held back on documentation which 
dealt with the very important  issue that it had to consider. Furthermore, the amaRharhabe 
were given very short notice to give oral evidence and to make written submissions on the 
questions posed by the Commission. 

 [41]	Full participation by all participants in any proceeding is the essence of a fair hearing 
as it not only recognises the dignity of the participants, it gives credence to the process. It 
also gives the participants an opportunity to influence the outcome of the proceedings;  
Joseph and Others v City of Johannesburg 2010 (4) SA 55 (CC), at para 42. In De
 Lange v Smuts NO and Others 1993 (3) SA 785 (CC) the following was stated at para 
131:

	“.....at heart, fair procedure is designed to prevent arbitrariness in the outcome of the 
decision......Everyone has a right to state his or her own case, not because his or her 
own version must be accepted, but because, in evaluating the cogency of any 
argument, the arbiter, still a fallible human being must be informed about the points 
of view of both parties in order to stand any real chance of coming up with an 
objectively justifiable conclusion that is anything more than chance.”

[42]	Mr Marcus submitted that the procedure was fundamentally unfair and that a failure 
to afford a proper hearing vitiated the decision of the Commission.  He argued that the 
concept of legitimate expectation conferred a right to be heard on the amaRharhabe. The 
concept was ‘an intergral part’ of the audi alteram partem principle which was well 
established in our law, Administrator, Tvl and Others v Traub and Others 1989 (4) SA 
731 (A) at 761 D-G; Administrator Cape and Another v Ikapa Town Council  1990 (2) SA 
882 (A). 

[43]	In my view, in order to put the application of this concept into perspective one 
needed to go back to the reason for the follow up hearing. Besides a complaint about the 
utterances of Mr Mda and if one had regard to the record of proceedings the issue was also 
that the ‘consolidated report’ emanated from the House of Phalo.  According to Mr Arendse 
the purpose of the follow up meeting was not to conduct a fresh investigation but was meant 
to give input on new material and on the commissions’ research. 

The Commission itself was cognisant of the gravity of the decisions it was expected 
to give and then it observed the audi alteram partem rule when it invited the parties to the 
follow up meeting. One cannot trivialize the importance of that document which the 
amaRharhabe say came to their attention for the first time at such hearing. The document 
was important in that it was requested by the Commission and it was going to be considered 
by it in arriving at its decision. The amaRharhabe maintain that it contained information 
adverse to their interests. The fact that the Commission itself deemed it necessary in its 
letter to observe the rules of natural justice, it had no reason in my view to deny the 
amaRharhabe audience on issues arising out of such document. I wish to point out to what 
was said by Prof Moleleki at the beginning of the hearings: at page 5 and 6of the transcript: 
“we are going to be here today and tomorrow, but we are likely to come back several times 
in the future, so this is going to be a long and arduous process, we need your cooperation”.

Based on the concept of legitimate expectation ‘which is an integral part’ of the audi 
alteram partem rule, the amaRharhabe had a right to insist upon the Commission to be 
heard.  

Supplementary affidavit and Error of Fact and Relevant Considerations
(Mr Marcus assisted by Mr Brickhill)

[44]	Firstly, there was objection to the filing of the supplementary and confirmatory 
affidavits on grounds that new matter was raised outside of the perimeters of the 
Commission. Mr Arendse submitted that no other forum had mandate to ‘analyse and 
decide’ on the paramountcies and paramount  chiefs. Furthermore, that since the applicant 
enjoyed legal representation before the Commission no explanation was offered why such 
new matter was raised in such affidavits and not before the Commission. He criticised the 
annexing of whole books of literature to the papers.  Mr Arendse filed a post hearing note in 
response to Mr Marcuts’s  ‘notes on argument’ and these related to the admissibility of the 
supplementary affidavit,  error of fact and condonation

[45]	It is common cause that the supplementary affidavits dealing with  the ‘living 
customary law’ of the amaRharhabe,  were served before the answering affidavit and that 
they have gone unanswered. Although it is contended that the facts therein be struck out, 
such facts, in as far as they were not dealt with by the respondents, remained uncontested 
and are not in dispute. 

 [46]	Mr Marcus argued that the supplementation was not limited to the record of the 
proceedings, Johannesburg Consolidated Investment Co v Johannesburg Town 
Council 1903 TS 111 at 115.  The requirements for fair proceedings obliged the 
Commission to consider all relevant matter, and that a ‘material mistake of fact even if made 
in ignorance constituted a reviewable irregularity, Government Employees Pension Fund 
and Another v Buitendag and Others 2007 (4) 2 (SCA) para 11; Pepcor Retirement Fun 
and Another v Financial Serives Board and Another 2003 (6) SA 38 (SCA) para 47. In  
order to justify a striking out the   “(i) matter must be scandalous, vexatious or irrelevant, and 
(ii)the court must be satisfied that if such matter is not struck out, the party seeking such 
relief  would be prejudiced”; para 26 deals with the test to determine relevancy and para 
136 states the rule ‘that a party who seeks to strike out must nevertheless on affidavit deal 
with the allegations made that he seeks to strike out.” Helen Suzman Foundation v 
President of the Republic of South Africa 2015 (2) SA 1 (CC)  

[47]	Mr Arendse relied on the case of Lufuno Mphaphuli and Associates (Pty) Ltd v 
Andrews and Another 2008 (2) SA SCA para 14, 15 and 16. Para 14: ‘that an applicant 
was not allowed to make out a new case in a supplementary affidavit; Para 15 that 
circumstances to be relied upon had to be set out in the founding affidavit  ...and  amplified ‘ 
in so far as may be necessary’ in the supplement affidavit by new information that had since 
become available;  Para 16 the new information did not justify the lengthy supplementary 
affidavit, ostensibly brought under rule 53(4). He conceded that an applicant for review may 
supplement the founding affidavit, however, he submitted that the supplementary affidavit 
was unjustifiably lengthy it totalling  76 pages excluding annexures as compared to the 33 
pages of the founding affidavit. The court had to reject  those pages not arising from the 
record.
 
In my view the facts in Lufuno supra are distinguishable to the present. There the 
parties had by agreement bound themselves, in the event of  a dispute regarding payment 
for services, that adjudication be by way of private arbitration. That adjudication was in turn 
regulated by the Arbitration Act 42 of 1965. It was held that the review if any was confined to 
grounds of procedural irregularity provided for in terms of section 33(1) of the said Act. By 
agreeing that the arbitrators award ‘shall be final and binding on the parties’, the parties had 
waived their right to have the merits reconsidered. 
	
[48]	 The new information that had since become available related to the discovery of 
three secret meetings that Andrews had with Bopanang. The court found that putting aside 
the three ‘secret meetings’, Lufuno in the lengthy supplementary affidavit raised a 
‘completely new case’ and that it was not suggested that the court a quo’s  discretion was ‘ 
exercised capriciously or upon a wrong principle or upon any other ground justifying 
interference by a court of appeal”. In the Constitutional Court, the Lufuno matter concerned 
the interpretation of section 34 of the Constitution  and how it should be applied to the 
Arbitration Act, the majority judgement left intact the decision of the High Court and SCA on 
the merits. 

In this matter the respondent failed to deal with what it contended was new matter. It 
was argued for the applicant that the Commission being the decision maker was obliged to 
consider all relevant facts. In my view, it is not open to the court on the basis that such 
evidence ought  to have been placed before the commission,  to out rightly decide to strike 
them out without considering the facts presented by both parties and the reasons why it 
should be struck out or not. 

[49]	Mr Arendse submitted that the supplementary affidavit was filed four years after 
the commission’s decision and that the applicant had failed to identity precisely, information 
considered by the Commission. This amounted to a trial by ambush and the applicant 
had failed to heed the invite in the answering affidavit to direct the court to the relevant 
information. Furthermore that the whole content of the books produced did not constitute 
new information, in that the substance of the information was before the Commission 
therefore the decisions relied upon, among others Pepcor and Buitendag did not find 
application. This argument in my view has no merit. 

[50]	Mr Arendse seems to criticize the reliance by the applicant on authority by Prof 
Periers who was one of the commissioners and who participated in the decision not to 
recognise the kingship of the amaRharhabe. The supplementary affidavit gives guidance on 
some of the authorities relied upon by mentioning authors, names of the books and pages. 
For example, at page 221/222/237  it is mentioned  that in the book by the very Prof Periers 
(“The House of Phalo pages 48 and 131) the independence of amaRharhabe was 
recognized. The respondents could have responded to this statement. For example (not 
raised by the parties Page 54 of the record), and concerning Prof Periers:  he was prevented 
by the chairperson in the initial hearings from asking a question which he considered was 
fair but controversial. If the applicant says in the supplementary affidavit, one of your 
commissioners in his book and other writers agreed with the version that the amaRharhabe  
were independent,  the respondent should have responded.  

[51]	Mr Arendse gave examples where in the record there appears evidence of the 
version of the amaRharhabe’s claim to independence and the authorities relied upon. Some 
of the literature referred to served before the Commission. The applicant contends that there 
has been no response in the answering affidavit with the issues in the supplementary 
affidavit on the material which served before the commission and additional authorities 
provided which supported the version that the Kingship of the amaRharhabe was not based 
on the principle of primogeniture.    

[52]	Besides information obtained at the hearings, based on stories that were handed 
down from generation to generation, and literature,  the material involved historical events, 
research and divergent views that spanned 250 years of governance of the 31 traditional 
communities headed by senior traditional leaders under the amaRharrhabe paramountcy, 
which demonstrated the existence of an independent kingship. These facts are dealt with in 
paragraph 29 of the supplementary affidavit. Mr Brickhill argued that the answering affidavit 
foreclosed the possibility of the recognition of a dual kingship. The Commission took the 
stance that male primogeniture as existed in 1740 was the deciding factor, thus making only 
Gcaleka, first son of the Great House, successor to Phalo. This approach he argued was 
defended also in the heads of argument for the respondent which ‘rejected the possibility 
that customary law had evolved to recognise dual kingships. Its decision, with the stroke of 
pen, for the first time took away the status of the amaRharhabe which was ‘a single narrative 
of independent kingship, ...consolidated and established’ over many years.   

[53]	 Although there were facts sufficient for substituting the decision of the Commission, 
the applicants were not praying for such order. In my view, the quality of the Commission’s 
final determination should be seen to have interrogated and considered all the facts and 
material available, including such information the Commission refused to hear and 
information predating the cut-off date. After all, the complaint was about a decision not to 
recognise the legitimacy of the Rharhabe paramountcy and that of its incumbent.

 [54]	Customary law was a living system as recognised and confirmed by the constitutional 
court; Pilane v Pilane 2013 (4) BCLR (CC) at para 34:

“..customary law is a vital component of the constitutional system, recognised and 
protected by the Constitution while ultimately subject to its terms. The true nature of 
customary law is as a living body of law, active and dynamic, with an inherent 
capacity to evolve in keeping with the changing lives of the people whom it governs”  

 	The test for determining the content of customary law said Mr Brickhill  ‘was looking 
backwards, looking to the present and as stated in Shilubana and Others v Nwamitwa 
2009 (2) SA 66 (CC) para 49”  

“if development happens within the community, the court must strive to recognise 
and give effect to that development, to the extent consistent with adequately 
upholding the protection of rights.”

In a recent decision our courts recognised that customary law had developed where the 
Xhalanga community in the Eastern Cape had over 60—100 years adopted a system of 
electing its own head man, rather than having one chosen on their behalf from the royal 
house, Premier of the Eastern Cape and Others v Ntamo and Others (2015) ZAECBHC 
14 (18 August 2015). Having regard to the above matters, it should be accepted that today 
there is greater need to appreciate that the development of customary law is a reality, that 
customary law is mutable, therefore it was important for the Commission to have considered 
claims to such development especially where it is alleged to have existed. This in my view 
would have been in line with the mandate in terms of section 28 (7) of the Act. 

The Commission’s Interpretation of section 9 (1)(b) of the old Act and the 1927 cut off

[55]	Mr Brickhill submitted that the Commission’s interpretation that the need to create 
uniformity only meant one kingship was incorrect. It ruled out the possibility of dual kingships 
from the beginning. He argued that this was evident from the manner in which the 
Commission went about its investigation as seen from the extract from the Commissions 
determination and decision. While it commenced correctly in identifying the issues as 
‘requiring in essence, a finding whether two independent kingships were established,’ under 
its heading ‘Analysis of Issues’ the following is stated: 			

“9.2.1 In pursuit of uniformity in the Republic as envisaged by the Framework    Act the Commission takes cognisance of the following principles:
(a)	The establishment of an independent traditional community under one leader;
(b)	Welding together diverse cultural and linguistic elements or communities each with its own recognisable traditional leader under one principal traditional leader;
(c)	The traditional community should not have lost its independence through indigenous political processes which resolved themselves during the centuries before colonial intrusion;
(d)	The principal traditional leader should rule over the entire traditional community with linguistic and cultural affinities rather than a section thereof.” (emphasis added)

Commission’s Determination, annexure “B” to answering affidavit pages 447-448 and 
sub-paragraphs.

It was argued that the Commission interpreted ‘the ‘uniformity’ considerations along 
‘’principles” that were not properly part of the statute at all’ and that tended to indicate that 
the section required or preferred, “one leader”; “welding together”; “one principal traditional 
leader’ to rule “over the entire traditional community.” This approach he said precluded both 
the amaGcaleka and amaRharhabe from interpreting ‘uniformity’ to mean, one kingship only 
per community. The responsibility on the Commission was to interpret the application of the 
Act in such a way that it conforms to the Constitution.   

[56]	Mr Brackhill submitted that the commission was empowered  to investigate disputes 
after  the cut off date of 1 September 1927 in terms of section 26(6) of the old Framework 
Act. This was however qualified in that, in terms of section 25(5)(a)(vi) they were entitled to 
investigate and consider events that preceded the cut-off date and that nowhere in the 
answering affidavit does the Commission give ‘good grounds’ which would have entitled it to 
temporarily extend its authority to look into the independence of the amaRharhabe. In my 
view these kingships were investigated as if there was a dispute about kingship whose 
origins were vested in customary law only,  that had been lodged and which the commission 
had to investigate and make a finding.  

Condonation

[57]	Mr Arendse submitted that this application was wholly and unreasonably late. The 
application was launched three years after the decision on kingship was taken on 28 April 
2008. This decision did not affect the position of late King Sandile it related to Kingships only 
Of importance was a letter written on behalf amaRharhabe on  30 July 2008 notifying the 
Commission that its decision was not accepted and that the applicant intended instituting 
legal proceedings. 

[58]	He argued that it was recorded at commencement of the second leg of hearings  that 
the amaRharhabe were legally represented by Advocate Smuts and his junior. There was a 
request to revisit the 2008 decision of the Commission on grounds that it was not a final 
decision. There was engagement with him on the appropriate forum to hear a review 
application. The Commission he said made it clear that they were functus officio and that 
their decision was final.  This would mean that administrative action cannot be reviewed 
because the commission was functus officio.  I agree with Mr Marcus that this line of 
argument would be ‘destructive’ of any of the grounds of review a litigant is entitled to raise 
including error fact and an error of law.

[59]	Mr Arendse argued further that there was no legal basis to reconvene the 
commission. He argued that he was not certain whether the old Act would be applicable as 
the mandate of the commission had been terminated and that it no longer sits. The decision 
not to give recognition was made under the old Act, under ‘transitional arrangements’ which 
differed from the process now applicable under the new Act. The decision of the 
Commission must still stand because ‘all the President had to do at the time was just 
publicise the decision in the Gazette,  The Minister of Cooperative Governance and 
Traditional Affairs and Others v Wezizwe Feziwe Sigcau and Others (40750/2014;  
Gauteng Division of the High Court, Pretoria) 

[60]	Mr Marcus argued that the matter was distinguishable from this one in that it was 
not a review application and at para 42 on page 288 where Judge Murphy stated that:, “the 
applicants do not seek to review any administrative action on the grounds of ........illegality or 
procedural fairness”. 

[61]	Mr Arendse further argued that it was not possible, for the applicant to have 
compromised his position by entering into the second phase when they were not happy with 
the fundamental issue of kingship. He submitted that the same points raised then were now 
raised as new evidence in the founding and supplementary affidavits. Furthermore, that the 
the failure by counsels for the applicants to pursue the condonation application in oral 
argument was suggestive of a lack of confidence in the merit of its reasons for lateness. This 
latter argument is without merit.

[62]	As I see it the record reflects that the issues raised by Advocate Smuts related to 
his request to revert to the decision taken by the Commission and the debate revolved 
around whether the decision of 2008 was an interim or final one. This is only one of the 
many issues raised as grounds of review in this application. Mr Arendse argues that the 
2005 hearing being before the 2008 decision there was nothing stopping the amaRharhabe 
from making representations to the Commission. This loses sight of the fact that they had 
been denied an opportunity to make representations during July 2007 on issues that were 
adverse to their assertions of independence.  

[63]	Mr Arendse argued that the main task of the Commission was to investigate the 
distortions caused by our colonisers and the apartheid regime, whether the existing 
paramountcies were genuinely established under customary law at the time and not today. 
According to him the Commission was bound by the mandate in the empowering statute and 
they concluded after considering the versions from both sides that  ‘golden rule’ of male 
primogeniture was applicable. The methodology adopted was disclosed to the parties and 
accepted and that some material referred to in the supplementary affidavit, for example 
Milton’s Book was referred to by the Commission. 

[64]	In my view the Act should not be interpreted to mean that the Commission was 
directed only to investigate distortions to the customary law as it existed as at time of the 
‘split  and cut off date, thereby empowering the commission to make decisions  that would 
have the effect of wiping out an entire history of a people.

[65]	Mr Brickhill argued that while the Commission’s view was that their decision was 
final,  the decision was taken in 2008 and only communicated to the President via the 
Minister in 2010. To the amaRharhabe the process presented an incomplete picture 
informed by hindsight during 2010 in that the President referred to the Commissions finding 
as a recommendation and to his decision which meant the final decision. According to the 
applicant the timing ran from the President’s decision. It was argued that from 2010 to 2013 
the legal position on the decision of the commission was not clear until determined by the 
constitutional court  when the President’s decision was set aside. Furthermore given the 
applicable timeframe which expired on 29 January 2011 the delay was not substantial.  It 
was therefore not unreasonable for the applicant to have launched the application when it 
did.

[66]	In my view, of importance is that the applicants are not seeking this court to 
substitute the decision of the commission, but that the matter be referred back for proper 
investigation and consideration by having regard to the issues raised in this review. I agree 
that the Commission as initially constituted is no longer in existence. It is therefore the duty 
of the First Respondent to initiate a process that would address this matter. Condonation 
should be granted not because the applicant expects the court to be sympathetic, but 
because this application is one that touches on decisions that have affected so many lives, it 
is a decision that strikes to the core of their belief in who they are in the overall family of the 
amaXhosa.  Thirty-one traditional communities and their King say on hindsight they now 
realize that the decisions were wrong, and based on the various grounds of review we they 
the process preceding the 2008 decision was procedurally unfair and the President’s 
decision in 2010 was legally incorrect. The Commission and the Commissioners repeatedly 
throughout the record insisted on fairness. The follow up hearing was motivated by an 
understanding among them that fairness had to prevail.  The respondents will not be 
prejudiced by a re-consideration. It should not be about the impossibility of the process being 
revisited, it should be about a people who say our situation is different and we have a right to 
demand that we should have been heard then before the decision was taken and again that  
consideration be given to our version and how that should be interpreted in light of the 
Constitution.    

[67]	In the result the following order is given: 

1.	The decision of the First Respondent taken on 29 July 2010 is reviewed and set

aside;

2.	The decision of the Commission on Traditional Leadership Disputes and Claims

in which it rejected the Applicant’s claim and that of the amaRharhabe people in 

respect of the recognition of the independence of the amaRharhabe 

paramountcy is reviewed and set aside.

3.	The period of 180 days in section 7 of the Promotion of Administrative Justice Act 

3	of 2000 is extended to the date of institution of the present application.

4.	The First, Second and Third respondents are ordered to pay the costs of this

application including costs of two counsel.

__________
TLHAPI VV
(JUDGE OF THE HIGH COURT)

MATTER HEARD ON					:	27 NOVEMBER 2015
JUDGMENT RESERVED ON			:	27 NOVEMBER 2015
ATTORNEYS FOR THE APPLICANT		:	SMITH TABATA INC.
ATTORNEYS FOR THE RESPONDENTS		:	BHADRISH DAYA ATT.