Who has the greater right to the kingship of AmaMpondo aseQaukeni – Princess Wezizwe Sigcau or her cousin Chief Zanozuko Sigcau?  Judge John Murphy ruled that the Princess ask the Constitutional Court to uphold her claim, but in the meantime President Zuma is legally empowered to recognise Zanozuko as King. The Princess has sought leave to appeal that ruling, but the ramifications of Murphy’s Law go way beyond the interests of the AmaMpondo. Sanral, an Australian mining company, and all who cherish the Pondoland Wild Coast are stakeholders in the final outcome of a dispute that has simmered for nearly 80 years.

A horse, a horse! My kingdom for a horse! The last words of Shakespeare’s Machiavellian King Richard III before he perishes in battle at the hands of the future king of England Henry VII, ring through the ages. Even if, today, royal succession disputes in South Africa are not decided on the battlefield but in the courts, they are still charged with the timeless theme, “...a personification of the Machiavellian view of history as power politics” according to Shakespearean scholar Janis Lull.

Most modern urban dwellers, regardless of race, believe that the institution of traditional leadership belongs to the Middle Ages and should be swept aside as an expensive patronage system that dangerously distorts the proper flow of political power from the bottom up, and warps democratic accountability.  Yet for more than a decade the late king of the AmaMpondo aseQuakeni, King Justice Mpondombini Sigcau, his Queen and their daughters have stood fast against the politics of patronage and corruption and instead tried to shape their kingdom as an inclusive institution that safeguards the constitutional rights of their subjects, especially when democratically elected politicians, CEOs of state-owned entities and wealthy foreign mining entrepreneurs violate them.
Five years have passed since President Jacob Zuma announced on 29 July 2010, that, in accordance with the finding by the Commission for Traditional Leadership Disputes and Claims, Mpondombini needed to relinquish the throne because his nephew Zanozuko Tyelovuyo Sigcau was indeed the rightful heir to the throne of AmaMpondo aseQuakeni, as he had claimed.  

Why? Because the Commission decided that, following the death of King Mandlonke nearly 80 years ago, the decision which gave Mpondombini’s father Botha Sigcau the throne was wrong, and that his uncle, Nelson Sigcau, ought to have been named iKumkani instead.  

The commission had ruled that upon Nelson Sigcau’s death, his son Zwelidumile would have been entitled to the kingship, and therefore upon his death his son Zanozuko was entitled to inherit the throne.  That meant that Botha’s genealogical line – his son Mpondombini and his first-born daughter Wezizwe – inherited an illegitimate dynasty, and unless they could successfully get the courts to overturn the commission’s determination, they would have to vacate the Quakeni Komkhulu (royal residence) and allow Zanozuko to move in and get paid the salary and receive the perks of the position.

In this real-life Shakespearean drama, Zanozuko had been given the “horse” by the commission, but was prevented from mounting it because Mpondombini Sigcau challenged both the substantive grounds upon which the decision had been based, as well as the technical, procedural validity of the president’s certification of Zanozuko.

An urgent interdict was granted in August 2010 to prevent Zanozuko’s certification and installation, and a three-year-long legal battle commenced. Mpondombini lost in the high court but the matter was escalated to the Constitutional Court on appeal, where his legal team, led by Advocate Patric Mtshaulana SC, argued that the president’s certification was invalid because it was only formalised after the five-year lifespan of the commission had expired and after amendments to the Traditional Governance Framework Act had come into effect.

The amendments modified the powers of the president, and obliged him to consult with the affected traditional community before any decision over a disputed claim could be made final.  

Advocate Norman Arendse SC argued the case for the President and commission, in vain.  

As to the substantive issue of the method and finding of the commission, the Centre for Law and Society had been admitted as Amicus Curiae, and Adv Tembeka Ngcukaitobi, instructed by the Legal Resources Centre, motivated that a traditional leader who was appointed by the state was then no longer a traditional leader but a state-appointed functionary; that the commission’s dependence on parliamentary statute rather than prevailing customary law was unconstitutional; and that the reliance on a rigid genealogical approach to determining succession was ossified, and failed to recognise the living dynamics of customary law.
The argument that won the day for Mpondombini was Adv Mtshaulana’s procedural case: the President had not firmly tightened the “girth strap” of the saddle of the horse that Zanozuko needed to ride triumphant into the Pondoland Game of Thrones. It all came down to a matter of how to interpret statutes and resolve certain ambiguities of language used. Zanozuko might have been heard to lament “a word, a word. My kingdom for a word”.  

As to the substantive award of the “horse” to Zanozuko, the court chose to remain silent, consistent with the judiciary’s tendency to seize upon a procedural flaw to kick a substantive issue into touch, especially issues that questioned executive decisions.

To add to the complexity, tragically, King Mpondombini was not present on 13 June 2013 when the Constitutional Court unanimously granted his application to have Zanozuko’s appointment set aside. He had passed away while awaiting judgment.
Notwithstanding the doubts about his legitimacy, the government still accorded him a state funeral, fit for a king.  Numerous dignitaries turned up to the funeral on 25 April 2013, including two cabinet ministers to represent the President.  

“He was the last man who spoke the truth. All the rest are liars” lamented the irrepressible Minister of Sport Fikile Mbalula.
Eastern Cape Premier Noxolo Kiviet expressed a different attitude. Laying aside her prepared speech, she opted to berate the King as he lay lifeless in his coffin. “Those people who stand against this democracy that we fought for, who think they will rule this nation through the courts of law, are causing a problem. I don’t want to disturb this service. The matter that is causing conflict will have to wait for the court but we are expecting, especially in matters of developing rural areas, to have a clear path”.

Mbalula’s tribute and Kiviet’s appalling abuse of decorum at the funeral, as well as the unfolding court case are featured in the award-winning documentary The Shore Break. The legal battle is one of three narrative threads; the Xolobeni Mining conflict and Sanral’s N2 Wild Coast Toll road are the other two. Kiviet clearly had these big development schemes in mind.

King Mpondombini, his Queen and their daughter Crown Princess Wezizwe Sigcau have stoutly defended the constitutional rights of the directly affected local residents to oppose these schemes and decide their local destinies locally.
Zanozuko is loudly supportive of both. His rule would “provide a clear path to the development of rural areas”. Zanozuko adheres to the Noxolo Kiviet school of imposed development.

The film moves to a climax featuring Princess Wezizwe Sigcau, first-born daughter of King Mpondombini and his Great Wife Queen MaSobhuza Sigcau jubilantly celebrating outside the Constitutional Court after receiving the judgment that granted her late father’s dying wish. In accordance with Mpondo customary law she was duly named by her mother and the Royal Council as hereditary successor. President Zuma sent two senior cabinet ministers to the Qaukeni Great Place to convey his congratulations and goodwill.  

Alas, what promised to be a fairy tale ending soon transmogrified again into Shakespearean tragedy.  

When presented with the formal papers to sign off on the decision by the royal family so that the princess could draw her salary and entitlements, the Presidency baulked. Seizing on the silence of the Constitutional Court on the substantive grounds for the decision, the Minister of Cooperative Governance and Traditional Affairs went back to court with their canny counsel, Adv Norman Arendse SC and Adv D Borgström, to seek three declaratory orders.  

First was an order declaring that Princess Wezizwe Sigcau had no right to claim the position of Queen of the amaMpondo aseQuakeni because the Commission had already found in favour of Zanozuko. Second was an order declaring that “the President was required and empowered only to implement the decision of the Commission of 21 January 2010 upholding the claim of Mr Zanzuko Sigcau, to be the rightful king of the amaMpondo aseQuakeni”. Third was “that section 26(2)(a) of the Traditional Leadership and Governance Framework Act 41 of 2003, prior to its amendment by the Traditional Leadership and Governance Framework Amendment Act 23 of 2009 (“the Amendment Act”), did not permit, require or empower the President to identify and follow a process of consultation with the royal family of amaMpondo aseQuakeni before implementing the Commission’s decision, and only requires the President to publicise the decision of the Commission, and issue a certificate of recognition under section 9(2) of the Act”.

Judge John Murphy did not grant the first order, ruling that the Constitutional Court must still ultimately decide if Princess Wezizwe Sigcau’s claim to succeed her late father King Mpondombini Sigcau has more merit than that of her distant cousin Zanozuko Sigcau.    However he also declared that until that happens, President Zuma can legally appoint Zanozuko as King.
Princess Sigcau’s team have lodged an application for leave to appeal against the second and third declarators. If granted, it will serve to ensure that the President has to hold his horses in certifying Zanozuko.

Will Murphy’s law be overturned? If so, it means that all those who have been counting on Zanozuko to ease the very troubled passage of the Xolobeni Mineral Sands’ mining rights application, and the commencement of the N2 Wild Coast shortcut, will have to continue waiting.    


Traditional rule still has clout

When Carte Blanche aired a story that showed the Green Scorpions flexing their muscles to stop the domestication of the Wild Coast by white city dwellers building holiday cottages in the Mngazana area near Coffee Bay, it looked like a good news story. Illegal structures were torched and bulldozed and the unity of common purpose shown between the headman, Fundile Msikantsi, and the head of enforcement for the Eastern Cape Department of Economic Development, Environmental Affairs and Tourism (Dedeat), Div de Villiers, seemed a formidable force. The Wild Coast was not the Wild West. Laws existed and they would be enforced to send a strong signal to any opportunists who thought they could get away with carving out a piece of paradise without a permit.  

However, the reality is that the remoteness and inaccessibility of the area generally places it further than the (ever-shortening) arm of the law can reach. In these parts it is the Traditional Authority system that provides a governance structure offering at least some means for ordering the common good. To adhere to customary law and also comply with statutory law is complicated. It needs wise and educated leadership. Misapplied, they easily cancel each other out, and the Wild Coast gets wilder still.
Some residents in the Lubanzi community,  50 km’s south of Mngazana feel aggrieved – not because they don’t cherish the pristine natural scenic beauty but because they feel that the chiefs give in too easily to the government and don’t consult much with communities. They believe the Green Scorpions are being misdirected by a traditional authority that is profiting from the illegal excavation of river sand for construction purposes.  

“The issue is not the few relatively harmless holiday shacks; but rather the illegal sand mining and the right to our land,” says Siphamandla Makhaya, a local resident who has been working with Wild Lubanzi Backpackers, owners of one of the demolished beach cottages.

“We are community members who have been lied to by Dedeat and have also been given false promises.  

“Enforcement is not pleasant” says De Villiers. “The Wild Lubanzi owners bought a cottage that did not have a Permission to Occupy certificate.  We explained that to them. The department has invested an enormous amount in environmental education beforehand. With very limited resources at our disposal we try to work with positive energy on the ground.”   

It is a familiar narrative: young backpackers from afar hike on the Wild Coast and can’t believe that such pristine natural beauty still exists on our despoiled planet. Dreams are dreamed and connections made with local residents to author an enterprise. Rules will be pragmatically made on the basis of necessity as circumstances demand.  

However not all interests at play are altruistic and noble. Rare cycads, river sand, indigenous timber hardwoods, crayfish and marine resources fetch a price in an external market. The Green Scorpions have a genuine desire to protect and conserve the coastal zone, and have an enormously complex set of stakeholders to engage.  

For the past five years the Eastern Cape authorities have been working on a coastal development plan, with yellow lines indicating nodes where people can live if they fall within the line they have drawn to protect the coast, and zones that must remain under conservation.  

Business and party-related interest groups have been rubbing their palms in anticipation.  But the plan has not been openly publicised, leading to suspicion that politically well-connected entrepreneurs want to position themselves to get the best options ahead of the competition. De Villiers claims it has been published for comment and will soon pass into law.

Makhaya has meanwhile approached the Public Protector, accusing the environmental authorities of misleading them.
“The Public Protector has not yet acknowledged our complaint and we are going to be sending a second email to ask why in the next few days. There are other community members who would like to add to the complaint. We hope she takes us seriously and that we are not just dismissed.”

Constitutionally the Public Protector is the perfect authority to intervene.  But the PP is even more stretched than the Eastern Cape Department of Environment, Development and Economic Affairs.  The PP’s regional offices have closed down due to severe financial constraints because of her courage of speaking truth to power.

Meanwhile the Lubanzi community can take heart from the enlightenment of the Crown Princess of the amaMpondo Kingship to the north, Princess Wezizwe Sigcau, who envisions a maturing of the Traditional Leadership System to resolve such tensions.

“The role of traditional leaders is to become custodians of the Bill of Rights on behalf of rural residents whose land rights are held under communal land tenure especially Section 24 of the Bill of Rights, which refers to their ‘Right to an environment that is not harmful to the health and well-being, and to have the environment protected for the benefit of present and future generations’.

“That mandate does not only arise from the Bill of Rights.  It is a duty that is implicit in our sense of accountability to our ancestors, who are identified within the Earth. The strong attachment to the land which traditional communities have is a source of indigenous knowledge and, properly understood, it is a progressive, inclusive cosmology.

“As the planet is increasingly compromised by a development logic that places life at the service of the economy, traditional leaders and customary law works from the inverse assumption. The economy must be at the service of Life.”

 

First published in Noseweek Issue #195, 1st January 2016