CCT67/14

[2014] ZACC 36

2015 (3) BCLR 268 (CC)

Khampepe J Majority judgment

Jafta J separate judgment

26 August 2014

15 December 2014

http://hdl.handle.net/20.500.12144/3756

Application for leave to appeal against a judgment of the SCA: Mamone v Commission of Traditional Leadership Dispute And Claims and Others (260/13) [2014] ZASCA 30; [2014] 3 All SA 1 (SCA) (28 March 2014). The case was first heard in the Pretoria High Court: Bapedi Marote Mamone v Commission on Traditional Leadership Disputes and Claims and Others (40404/2008) [2012] ZAGPPHC 209; [2012] 4 All SA 544 (GNP) (21 September 2012).

Promotion of Administrative Justice Act 3 of 2000 — section 6(2)(e)(iii) and 6(2)(f)(ii)(cc) and (dd) — failure to consider relevant facts and rationality review — decisions of specialist bodies must be treated with appropriate respect — the Commission’s decision did not fail to consider relevant facts and was not irrational Traditional Leadership and Governance Framework Act 41 of 2003 — section 25(3) — Commission required to establish the relevant customary law as it was when the events that gave rise to the dispute or claim occurred and to apply that law. Appeal concerning the validity of the decision taken by the Commission on Traditional Leadership Disputes and Claims regarding the Bapedi Kingship. The Commission was required to establish the relevant customary law as it was when the events that gave rise to the dispute occurred and to apply that law in accordance with section 25(3) of the Traditional Leadership and Governance Framework Act 41 of 2003. Having considered the evidence before it, the Commission ruled that Kgoši Mampuru II was the rightful heir to the kingship in terms of the Bapedi customary law of succession at the time. However, it concluded that Kgoši Mampuru II lost the kingship in 1861 when Kgoši Sekhukhune I challenged and drove him out of the kingdom. It was not unusual at the time, according to the Commission, for kingship to be usurped through “might and bloodshed” and customary law recognised the validity of this usurpation. The Mamone Royal House contended that the Commissioner acted irrationally, failed to take relevant facts into account and deviated from the principle of primogeniture by which succession to traditional leadership is established. The majority held that the decisions of specialist bodies must be treated with appropriate respect and further that the Commission’s decision had not failed to consider relevant facts and was not irrational. The dissent would have set aside the Commission’s decision on the basis that it failed to consider relevant facts and was not rationally connected to the information before it and that the Commission had not applied the relevant customary law that existed at the time, as it was obliged to do by the Framework Act. Majority: Khampepe J (Moseneke DCJ, Cameron J, Froneman J, Leeuw AJ, Madlanga J, Van der Westhuizen J and Zondo J concurring) Dissent: Jafta J (Nkabinde J concurring)