Johannesburg - The Constitutional Court on Monday dismissed an appeal against a Supreme Court of Appeal (SCA) ruling on the legal Bapedi kingship.
Under the Traditional Leadership and Governance Framework Act, the Commission on Traditional Leadership Disputes and Claims had investigated the leadership dispute around the kingship.
A dispute arose about whether the kingship resorted under the lineage of Kgosi Sekhukhune I or of Kgosi Mampuru II, who fought each other for the throne in the second half of the 1800s.
Kgosi Mampuru II took leadership in 1861 and Kgosi Sekhukhune I took over the kingship and ruled the Bapedi for 20 years.
Kgosi Mampuru II never ruled the Bapedi after killing Kgosi Sekhukhune I in 1881, according to the judgment.
“The events therefore differed in a material respect and it was not irrational for the commission to distinguish them. In addition, the commission found Kgosi Mampuru II’s brief rule during Kgosi Sekhukhune I’s reign was of no legal relevance.
“His coronation was a unilateral act of the British government and there was no evidence that it was sanctioned in accordance with Bapedi customary law.”
The court ruled that the minority judgment 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.
In addition, Justice Chris Jafta held that the commission did not apply the relevant customary law that existed at the time, as it was obliged to do by the framework act.
The court heard the case on August 26 this year.
The commission had ruled that Kgosi Mampuru II had been the rightful heir to the kingship in terms of the Bapedi customary law of succession at the time.
It however concluded that Kgosi Mampuru II lost the kingship in 1861 when Kgosi Sekhukhune I challenged and drove Kgosi Mampuru II out of the kingdom. At the time it was not unusual for kingship to be usurped through “might and bloodshed”.
Kgosi Mampuru II returned in 1881 and killed Kgosi Sekhukhune I. He did not ascend the throne because he fled and was captured and executed by the government for Kgosi Sekhukhune I’s killing.
A traditional community in Limpopo, the Bapedi Marota Mamone, representing the descendants of Kgosi Mampuru II, challenged the commission’s decision.
The community argued the decision was irrational because it applied the might and bloodshed rule to Kgosi Sekhukhune I’s driving-off of Kgosi Mampuru II in 1861, but not to Kgosi Mampuru II’s killing of Kgosi Sekhukhune I in 1881.
The commission ignored the fact that Kgosi Mampuru II was installed as leader of the Bapedi while Kgosi Sekhukhune I was imprisoned by the British, they argued.
These arguments were unsuccessful in the high court and in the SCA. - Sapa