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[2024] ZAECMHC 2
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Mtirara and Others v Premier of the Eastern Cape Province and Others (3132/2021) [2024] ZAECMHC 2 (23 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO. 3132/2021
In
the matter between:
MNINAWA
MTIRARA
First
applicant
MFANTA
ROYAL FAMILY
Second
applicant
HALA
TRADITIONAL COUNCIL
Third
applicant
And
PREMIER
OF THE EASTERN CAPE PROVINCE
First
respondent
MEC
FOR CO-OPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS, EASTERN CAPE
PROVINCE
Second
respondent
CHAIRPERSON
OF THE HOUSE OF
TRADITIONAL
LEADERS, EASTERN CAPE
PROVINCE
Third
respondent
KING
DALIMVULA MATANZIMA
Fourth
respondent
NONESI
TRADITIONAL COUNCIL
Fifth
respondent
XOLILE
MZINGISI MFANTA
Sixth
respondent
JUDGMENT
LAING
J
[1]
This is an application pertaining to the leadership of
the fifth
respondent, i.e. the Nonesi Traditional Council. The applicants seek,
inter alia
, the review and setting aside of the first and
second respondents’ failure to decide an application for the
removal of the
sixth respondent as acting traditional leader of the
Nonesi Traditional Council. They also seek recognition of the first
applicant
as its senior traditional leader, and the review and
setting aside of the first and second respondents’ refusal to
grant
such recognition.
[2]
The background to the matter is set out below.
BACKGROUND
[3]
The parties’ respective cases are summarised in
accordance with
the corresponding sub-headings.
Applicants’
case
[4]
The first applicant alleges in his founding affidavit
that he and his
elder brother, the late Khandilizwe Mtirara, were sons from the great
house of the late Manzezulu Mtirara, who
had been the senior
traditional leader for the Hala Traditional Council in the Lady Frere
district. In 1967, the Hala Traditional
Council was split to create
the Nonesi Traditional Council to accommodate those communities
situated far from the great place.
Khandilizwe Mtirara assumed the
role of senior traditional leader for the Nonesi Traditional Council
in 1989.
[5]
The first applicant’s father, Manzezulu Mtirara,
subsequently
married a second wife, Noluntu Mtirara. This led to the creation of a
right-hand house (
ukunene
), situated in the Cofimvaba
district.
[6]
In 2002, Manzezulu Mtirara passed away. The Mfanta Royal
Family
(cited as the second applicant) thereupon decided that Khandilizwe
Mtirara should succeed his father and become the senior
traditional
leader for the Hala Traditional Council. At the same time, the first
applicant’s half-brother, Bongisizwe Mtirara,
from the
right-hand house, was recognized as acting senior traditional leader
for the Nonesi Traditional Council, despite its having
been
established, avers the first applicant, for the great house.
[7]
Khandilizwe Mtirara passed away in 2009. This resulted
in the
recognition of his eldest son, Nkosiphendule Mtirara, as the senior
traditional leader for the Hala Traditional Council.
Bongisizwe
Mtirara passed away a couple of years later.
[8]
On 6 November 2011, the Mtirara Royal Family met to identify
the
sixth respondent as the acting senior traditional leader for the
Nonesi Traditional Council. The first applicant denies, however,
that
he ever attended such a meeting and further denies that he ever
signed a resolution to that effect. He also goes on to deny
that the
Mtirara Royal Family ever existed. Instead, he alleges that the
Mfanta Royal Family met on 18 February 2012 to identify
him, as the
eldest surviving son of the late Manzezulu Mtirara, to be the senior
traditional leader for the Nonesi Traditional
Council. The family
requested the second respondent (‘the MEC’) to accord the
first applicant the necessary recognition.
[9]
The first applicant contends that it is customary amongst
the
abaThembu for the heirs of the right-hand house not to be appointed
as senior traditional leader while any of the heirs of
the great
house are still alive. There was no basis for the decision taken by
the Mtirara Royal Family.
[10]
This led to the Mfanta Royal Family’s requesting the MEC to
intervene
and to protect the great house from the alleged abuses of
the right-hand house. The family subsequently instructed attorneys to
assist. To that effect, Smith Tabata Inc requested, on 21 November
2012, that the MEC withdraw recognition of the sixth respondent
and
recognise the first applicant as the senior traditional leader for
the Nonesi Traditional Council. The first respondent (‘the
Premier’) acknowledged the matter and assured the attorneys
involved that it would receive attention.
[11]
The requests yielded no result, leading the first applicant to bring
an application
against the MEC, the Nonesi Traditional Council, and
the sixth respondent. This was later withdrawn.
[12]
On 11 March 2021, says the first applicant, the Premier assured his
new attorneys
that the matter had been referred to the Department of
Co-operative Governance and Traditional Affairs (‘COGTA’)
for
investigation. Nothing, however, came of this.
[13]
The first applicant attaches the affidavits of various members of the
Mfanta
Royal Family, confirming that the Nonesi Traditional Council
was created for the great house, not the right-hand house.
Respondents’
case
[14]
In their answering papers, the Premier and the MEC rely on the
affidavit of
a senior COGTA official, Zingisa Bokwe. He alleges that
he is responsible for investigations into the recognition of
traditional
leaders in terms of the
Traditional and Khoi-San
Leadership Act 3 of 2019
.
[15]
At the outset, the respondents aver that the first applicant has
already brought
two separate but identical applications, under case
numbers 1730/2013 and 2022/2018, which he later withdrew. The facts
and cause
of action upon which the current application rests are the
same as the earlier applications.
[16]
The respondents assert that, consequent to the passing of the late
Khandilizwe
Mtirara, the Mfanta Royal Family met on 13 March 2009,
immediately after the funeral. The family identified the first
applicant
as acting senior traditional leader for the Hala
Traditional Council, while the late Khandilizwe Mtirara’s son,
Nkosiphendule
Mtirara, remained a minor. The first applicant
subsequently refused to surrender his role as regent and laid claim
to the position
of senior traditional leader.
[17]
On 6 November 2011, the Mfanta Royal Family met at Ezibeleni after
the passing
of Bongisizwe Mtirara, who had been senior traditional
leader for the Nonesi Traditional Council. The respondents state that
the
first applicant chaired the meeting, and the sixth respondent
recorded it. Following heated discussion, the family identified the
sixth respondent as acting senior traditional leader for the Nonesi
Traditional Council and regent to the late Bongisizwe Mtirara’s
minor son, Sinovuyo Mtirara.
[18]
The Mfanta Royal Family then requested the MEC to recognise the sixth
respondent.
The resolution to that effect, say the respondents,
incorrectly refers to the Mtirara Royal Family. The surnames, i.e.
Mfanta and
Mtirara, are used interchangeably, but both the Hala
Traditional Council and the Nonesi Traditional Council fall under the
administrative
authority of an institution or structure known as the
Mfanta Royal Family. They also point out that the first applicant is
in possession
of the original attendance register, minutes, and
resolution, but has consistently refused to provide them with copies
thereof.
[19]
The respondents take issue with the first applicant’s failure
to attach
a written resolution of the Mfanta Royal Family for the
institution of legal proceedings. A supporting affidavit from
Nkosiphendule
Mtirara was insufficient. They also contend that the
decision allegedly taken at a meeting of the Mfanta Royal Family on
18 February
2012 was attended, in the main, by the first applicant’s
immediate relations, i.e. his wife and children. It excluded numerous
senior traditional leaders who were members of the Mfanta Royal
Family at the time. Consequently, the decision allegedly taken
to
appoint the first applicant did not reflect the views of the
majority. The respondents argue that it is contrary to the traditions
of the abaThembu for a younger son from the great house to seek to be
made a senior traditional leader for the right-hand house.
The Mfanta
Royal Family has never confirmed the first applicant’s
allegations or attempted to rectify its earlier resolution
to
identify the sixth respondent.
[20]
Overall, the respondents assert that the late Manzezulu Mtirara
practised polygamy,
which had led to the creation of a great house
and a right-hand house. The latter exercised its authority through
the Nonesi Traditional
Council, for which the first applicant sought
to be recognized as senior traditional leader, notwithstanding the
custom that prevented
an heir from the great house from attempting to
do so. The Mfanta Royal Family could never have identified the first
applicant
as he has alleged; this would have been contrary to the
traditions of the abaThembu.
[21]
The
respondents state that MM Holi Attorneys wrote to the Premier, on 6
October 2017, requesting the recognition of their client,
the first
applicant, as the senior traditional leader for the Nonesi
Traditional Council. The MEC, on 14 November 2017, refused
their
request. The same attorneys subsequently demanded, on 9 March 2021,
that the MEC reverse the recognition of the sixth respondent
as
acting senior traditional leader for the Nonesi Traditional
Council.
[1]
To this, the MEC
sent a strongly worded response, on 19 April 2021, confirming
recognition of the sixth respondent, emphasising
the customs
involved, highlighting the flaws in the first applicant’s
reasoning, and pointing out that his various court
challenges
amounted to frivolous litigation.
[22]
The sixth respondent added a supporting affidavit to the answering
papers.
He confirms that the Mfanta Royal Family met at Ezibeleni on
6 November 2011 after the passing of Bongisizwe Mtirara and
identified
the sixth respondent as acting senior traditional leader
and regent. The acting king at the time, Gwazinamba Matanzima,
explained
that the first applicant was precluded from being appointed
by reason of his being from the great house, not the right-hand
house.
In
reply
[23]
The first applicant is adamant, in reply, that he never attended any
meeting
of the Mfanta Royal Family at which the sixth respondent was
identified for recognition. The signature to the family resolution
was not his and was forged. Any decision in relation to the
identification of the sixth respondent, alleges the first applicant,
was taken by a bogus institution or structure calling itself the
Mtirara Royal Family. Such meeting as did take place on the date
in
question was that of the Dlomo clan, on the passing of one of their
members.
[24]
The primary issues for adjudication, contends the first applicant,
are whether
the Nonesi Traditional Council was created for the
benefit of the right-hand house, and whether he has the right to lead
it. This
assertion is discussed below.
ISSUES
TO BE DECIDED
[25]
Before the
court can deal with the issues highlighted by the first applicant, it
must address the plethora of points raised
in
limine
by the respondents. Whereas many of the points were only raised in
argument, the following emerge from the respondents’ papers:
the MEC’s decision, 14 November 2017, to refuse the first
applicant’s request for recognition remains in effect until
reviewed and set aside; the first applicant’s reliance on
section 6(2)(g) of the Promotion of Administrative Justice Act
3 of
2000 (‘PAJA’) is misplaced because the MEC did, in fact,
take a decision, both on the above date and on 19 April
2021;
[2]
the first applicant has delayed in launching his review application,
contrary to section 7(1) of PAJA, and has failed to demonstrate
why
such delay should be condoned; there is no resolution from the Mfanta
Royal Family that either identifies the first applicant
as a senior
traditional leader or that authorises the institution of these
proceedings; and the first applicant has failed to exhaust
the
available internal remedies, as envisaged in terms of section 7(2) of
PAJA.
[26]
The first
applicant later amended his notice of motion to include a prayer for
the review and setting aside of the Premier and the
MECs’
decision to refuse his request for recognition. The amendment, in
effect, addresses the first point, above, and forms
the subject of
the immediate application. Furthermore, it now seems to be common
cause, in terms of both the answering and replying
papers, that the
MEC has, in fact, taken a decision to refuse the first applicant’s
request.
[3]
Whether this is the
decision that ought to be reviewed and set aside or whether it should
be the earlier decision to recognise
the sixth respondent is
something to be considered further, but it can safely be said that
the first applicant no longer appears
to depend on section 6(2)(g) of
PAJA, as contended by the respondents under the second point, above.
[27]
Consequently, the remaining points can conveniently be arranged as
follows:
(a) whether the first applicant is authorised to bring the
present application; (b) whether he has exhausted all internal
remedies;
and (c) whether he has demonstrated a basis upon which to
condone the procedural delay envisaged under section 7(1) of PAJA. If
the above hurdles can be cleared, then the merits of the matter can
be considered, including the primary issues described by the
first
applicant. Before proceeding further, it is necessary to consider,
briefly, the relevant legal principles involved.
LEGAL
FRAMEWORK
[28]
The Traditional Leadership and Governance Framework Act 41 of 2003
(‘the
TLGFA’) applied at the time that the sixth
respondent was recognised as acting senior traditional leader. It
also applied
when the first applicant was so recognised, as he has
alleged. The TLGFA provided for the identification and recognition of
senior
traditional leaders, regents, and persons acting as such.
Furthermore, it set out, in terms of section 21, a dispute and claim
resolution process whenever a dispute or a claim concerning customary
law or tradition arose in relation to the implementation of
the
legislation in question. This involved several stages of resolution.
An attempt had to be made to resolve the dispute or claim
internally,
failing which it had to be referred to the provincial house of
traditional leaders, failing which it had to be referred
to the
Premier. If, at that stage, the dispute or claim had still not been
resolved, then (and only then) it had to be referred
to the
Commission on Traditional Leadership Disputes and Claims (‘the
CTLDC’), as contemplated under section 22.
[29]
Similar
provisions exist in the Eastern Cape Traditional Leadership and
Governance Act 1 of 2017 (‘the provincial Act’).
Although
it had not been enacted at the time that either the sixth respondent
or the first applicant was recognised, as alleged,
the provincial Act
came into effect prior to the MEC’s refusal of the first
applicant’s request and prior to the institution
of the present
proceedings.
[4]
A dispute
resolution procedure is contained in section 36 thereof.
[30]
The Traditional and Khoi-San Leadership Act 3 of 2019 (‘the
national
Act’) was enacted with effect from 1 April 2021, also
prior to the institution of the present proceedings. It repealed the
TLGFA but retains, in effect, the mechanisms created in terms thereof
for the identification and recognition of senior traditional
leaders,
regents, and persons acting as such. Similarly, it retains a
mechanism for dispute resolution, as apparent from section
59.
[31]
The above legislation comprises the framework for the matter at hand.
The legal
principles regarding the first applicant’s procedural
delay are well-known and shall be dealt with separately, below.
DISCUSSION
[32]
The issues to be decided shall be discussed in further detail under
their respective
sub-headings, as indicated.
Lack
of authorisation
[33]
The respondents’ contention, as the court understands it, is
that, firstly,
the Mfanta Royal Family has never resolved to retract
or withdraw its identification of the sixth respondent as the acting
senior
traditional leader for the Nonesi Traditional Council and
regent to Sinovuyo Mtirara. Its decision of 6 November 2011 still
stands.
The first applicant has, secondly, failed to provide any
evidence of a resolution taken by either the Mfanta Royal Family or
the
Hala Traditional Council to institute these proceedings.
[34]
The absence of a clear resolution by the institutions or structures
involved
poses a formidable obstacle to the first applicant. Whereas
he has attached the confirmatory and supporting affidavits of Sandi
Mtirara and Nkosiphendule Mtirara, respectively, purportedly to
demonstrate the necessary authorisation, neither document takes
the
matter much further. Each begs the question. There is no indication
at all that either Sandi Mtirara or Nkosiphendule Mtirara
was, in
turn, authorised by the family or the council to endorse or support
the present application. No record of any meeting or
collective
decision to that effect has been provided. Interestingly, the first
applicant chooses not to deal with the issue at
all in reply.
[35]
Consequently, there is merit in the respondents’ point
in
limine
. The lack of visible authorisation attracts, at the very
least, the question of whether the Mfanta Royal Family and the Hala
Traditional
Council have indeed approved the institution of these
proceedings. This may have a bearing on costs, to be addressed in due
course.
Exhaustion of internal
remedies
[36]
The provisions of section 7(2) of PAJA
stipulate that no court shall review an administrative action unless
an internal remedy provided
for in any other law has first been
exhausted. If a court is not satisfied that an internal remedy has
been exhausted, then it
must direct the person concerned to exhaust
the remedy in question before instituting review proceedings. The
provisions allow
a court to exempt such person from exhausting the
remedy, in exceptional circumstances and on application by the person
concerned,
if deemed to be in the interests of justice.
[37]
In academic commentary on the above
provisions, JAvS d’Oliveira observes as follows:
‘
The
underlying purpose of section 7 is to defer, and not exclude,
judicial review of administrative action until an existing internal
(or domestic) remedy provided by “any other law” is
utilised and those proceedings concluded. The phrase “any
other
law” in section 7(2)(a) refers to a law other than PAJA.
Section 7(2) transforms the common law and is more stringent
in its
insistence that internal remedies be exhausted: first, section
7(2)(a) requires the court to direct the party concerned
to first
exhaust such remedy if he or she has not done so and, second, it
empowers the court in its discretion to exempt the party
concerned
not only if it is in the interests of justice but also if exceptional
circumstances exist.’
[5]
[38]
As briefly considered previously, the
applicable legal framework consists of legislation enacted to
regulate traditional leadership
within the context of the customary
law and traditions of a community. The legislation in question, i.e.
the TLGFA, the provincial
Act, and (later) the national Act, all
contain dispute resolution procedures that constitute internal
remedies.
[39]
It is apparent from the first applicant’s
papers that his erstwhile attorneys, Smith Tabata Inc, referred the
dispute to the
provincial house of traditional leaders and
subsequently the Premier, as contemplated under both the TLGFA and
the provincial Act.
Nevertheless, the last communication in that
regard seems to have been a letter from COGTA to the attorneys in
question, 8 February
2013, assuring them that the matter was
receiving attention. There is no evidence that further steps were
taken to pursue the available
remedies prior to the first applicant’s
institution of these proceedings on 8 July 2021. Inasmuch as he
brought two applications
before the High Court during the intervening
period, it is not at all apparent whether and to what degree the
first applicant made
any
bona fide
effort in the eight years that passed since the last communication
between his attorneys and COGTA to re-engage with the dispute
resolution procedures available.
[40]
The court is not satisfied that the first
applicant has properly explored and used up the internal remedies
provided in terms of
the applicable legal framework. No exceptional
circumstances exist to permit the court to exempt the first applicant
from doing
so.
[41]
It would be open to the court, at this
stage, to direct the first applicant to exhaust the dispute
resolution procedures indicated
in the provincial Act, read with the
national Act, before attempting to pursue the immediate proceedings.
Before investigating
this aspect further, however, it is necessary to
consider the consider procedural delay incurred by the first
applicant in bringing
the present review application.
Procedural
delay
[42]
There are several aspects to this, to be dealt with separately.
Subject
of the review proceedings
[43]
The parties have focused on the MEC’s decision to refuse the
first applicant’s
request for recognition as the senior
traditional leader for the Nonesi Traditional Council, as contained
in COGTA’s letter
to MM Holi Attorneys, 14 November 2017. It
seems to be common cause that it is this decision that lies at the
heart of the present
review proceedings. When considered more
closely, however, the basis for this is questionable.
[44]
What
appears to have been overlooked is the MEC’s earlier decision
to recognize the sixth respondent, pursuant to a meeting
of the
Mfanta Royal Family at Ezibeleni on 6 November 2011. From the record
filed by the respondents, it is evident that the MEC’s
decision
was made on or about 14 March 2012. The first applicant has never
disputed that such a decision was ever made. Instead,
he has alleged,
inter
alia
,
that the meeting at which the sixth respondent was identified was
that of the Dlomo clan, and that he was never present, saying
further
that the ensuing resolution was of a bogus institution or structure
describing itself as the Mtirara Royal Family, and
that his signature
thereto was forged. Until reviewed and set aside, however, the MEC’s
earlier decision stands and must
be given effect in accordance with
the principles enunciated in
Oudekraal
Estates (Pty) Ltd v City of Cape Town
.
[6]
Any attempt to have the MEC’s later decision reviewed and set
aside will be meaningless without addressing the earlier decision.
Relevant
legal principles
[45]
Irrespective
of whether the earlier or the later decision forms the focus of these
proceedings, the fact remains that the first
applicant has brought
the present application well outside the 180-day timeframe prescribed
under section 7(1) of PAJA. This attracts
the application of the now
well-established case law in relation to procedural delay.
The
relevant principles were discussed in
Associated
Institutions Pension Fund and others v Van Zyl and others
,
[7]
where
Brand JA remarked:
‘
It
is a long-standing rule that courts have the power, as part of their
inherent jurisdiction, to regulate their own proceedings,
to refuse a
review application if the aggrieved party had been guilty of
unreasonable delay in initiating the proceedings. The
effect is that,
in a sense, delay would “validate” the invalid
administrative action… The
raison
d´etre
of the rule is said to be
twofold. First, the failure to bring a review within a reasonable
time may cause prejudice to the respondent.
Second, there is a public
interest element in the finality of administrative decisions and the
exercise of administrative functions…
…
The
scope and content of the rule has been the subject of investigation
in two decisions of this court. They are the
Wolgroeiers
case…
[8]
and
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie en ‘n
ander
…
[9]
As appears from these two cases and the numerous decisions in which
they have been followed, application of the rule requires
consideration of two questions:
(a)
Was there an unreasonable delay?
(b)
If so, should the delay in all the
circumstances be condoned?
…
The
reasonableness or unreasonableness of a delay is entirely dependent
on the facts and circumstances of any particular case.’
[10]
[46]
The above questions must, essentially,
inform any enquiry into whether a procedural delay was unreasonable.
They are rooted in our
jurisprudence and are reflected in the most
recent authorities that pertain to review proceedings under PAJA and
associated delays.
[47]
Regarding,
specifically, the 180-day timeframe indicated in terms of section
7(1) of PAJA, the decision in
Opposition
to Urban Tolling Alliance v South African National Roads Agency
Limited
makes it clear that a delay that exceeds the above period is
per
se
unreasonable.
[11]
A
court cannot deal with any review proceedings unless the interests of
justice require the granting of an application made for
the extension
of the period in question.
[48]
The
decision of the Constitutional Court in
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
set
out, expressly, the principles that apply when assessing delay.
[12]
The
unreasonableness of a delay cannot be examined in a vacuum and a
court must decide whether the delay ought nevertheless to be
overlooked. To that effect, the court must consider several factors:
(a) the potential prejudice to affected parties as well as
the
possible consequences of setting aside the impugned decision; (b) the
nature of the impugned decision; and (c) the conduct
of the
applicant. Despite there being no basis upon which to overlook an
unreasonable delay, the court may, nevertheless, be constitutionally
compelled to declare state conduct unlawful.
[13]
[49]
In
the end,
Asla
and recent decisions invoke the two questions identified in
Associated
Institutions Pension Fund
:
(a) was there an unreasonable delay; and (b) if so, should the delay
in all the circumstances be condoned?
[14]
These must be applied to the facts of the present matter.
Condonation
[50]
Based on the principles contained in
OUTA
,
it must be accepted that the first applicant’s delay is
per
se
unreasonable. He now seeks
condonation.
[51]
For the respondents, any attempt to have
the MEC’s decision(s) set aside will affect a
status
quo
that has already been in place for
a period of nine years. The individuals, families, and communities
involved have planned, adjusted
to, and conducted themselves in
accordance with the consequences of the recognition of the sixth
respondent after his identification
by the Mfanta Royal Family on 6
November 2011. The potential prejudice that will be caused if such
recognition were to be reviewed
and set aside is obvious. The
likelihood that it would attract additional litigation is difficult
to refute, resulting in further
acrimony and communal instability.
[52]
Regarding the nature of the decision
itself, the first applicant’s papers indicate that the MEC’s
later decision, 14
November 2017, is the focus of these proceedings.
He has failed to deal, decisively and unequivocally, with the
consequences of
the possible review and setting aside of such
decision when the MEC’s earlier decision, recognising the sixth
respondent,
remains intact. The court has been left with the
unfavourable impression that the first applicant has skirted the
issue to avoid
having to explain his refusal or failure to have
challenged the earlier decision timeously (and head-on, so to speak),
rather than
via the belated and indirect attempt made in terms of the
present application.
[53]
The
respondents have, moreover, furnished a cogent and reasonable set of
explanations for why the MEC’s later decision was
correct and
in alignment with the applicable tenets of customary law and
tradition. The first applicant, from the great house,
cannot be a
senior traditional leader for a traditional council that was
established for the right-hand house. To the extent that
the first
applicant’s case rests on the assertion that an heir from the
right-hand house cannot be identified and recognised
as a senior
traditional leader while there is a surviving heir from the great
house, in circumstances where the Nonesi Traditional
Council was
allegedly established for the latter, this cannot be resolved in his
favour on the papers. The issues for adjudication
that the first
applicant outlined in reply, viz.
whether
the Nonesi Traditional Council was created for the benefit of the
right-hand house, and whether he has the right to lead
it, inevitably
give rise to a factual dispute. The general rule must be applied. The
court, in accordance with the principles laid
down in,
inter
alia
,
Stellenbosch
Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd
,
[15]
can only grant a final order on notice of motion if the facts as
stated by the respondent, together with the facts alleged by the
applicant that are admitted by the respondent
,
justify such an order. The exception to this, as explained in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
,
[16]
is:
‘…
where
the court is satisfied that the respondent’s version consists
of bald or uncreditworthy denials, raises fictitious disputes
of
fact, is so far-fetched or so clearly untenable or so palpably
implausible as to warrant its rejection merely on the papers.’
[54]
Such an exception does not emerge from the respondents’ papers.
If anything
can be said in this regard, then it is the first
applicant’s allegations that fall to be rejected. His
contention that he
never attended the meeting of the Mfanta Royal
Family on 6 November 2011 at which the sixth respondent was
recognised, that the
resultant resolution was produced by a bogus
institution or structure, and that the signature thereon was not his,
is a fanciful
and entirely unconvincing attempt to deal with what
seem to be inconvenient truths.
[55]
The conduct of the first applicant cannot escape
criticism. A fundamental consideration is his failure to have
provided a proper
explanation for the delay. At best, he has
neglected to deal adequately with the period between the date of the
MEC’s later
decision, 14 November 2017, and the date of the
institution of these proceedings, 8 July 2021; at worst, he has
refused to explain,
carefully and transparently, what meaningful
steps were taken in the nine years between the date of the MEC’s
earlier decision
and the date of the present application. The first
applicant was, at all pertinent times, legally represented; he cannot
plead
ignorance of what ought to have been done. The full details of
any engagement with the respondents to resolve the dispute have not
been supplied. The contents of his earlier applications and reasons
for why they were withdrawn have not been disclosed. The first
applicant has simply failed to take the court into his confidence.
[56]
The cumulative effect of the above is that the
court is far from persuaded that condonation for the first
applicant’s delay
should be granted.
Relief and costs
[57]
As already discussed, it is not at all
clear that either the Mfanta Royal Family or the Hala Traditional
Council authorised these
proceedings. There is, moreover, no
indication that the first applicant has exhausted the internal
remedies available to him in
accordance with the applicable legal
framework. It is the first applicant’s procedural delay,
however, that presents an insurmountable
hurdle to the granting of
the relief that he seeks. That such delay was unreasonable is beyond
dispute. For the reasons already
provided, the court is not prepared
to condone the delay. The application must be rejected.
[58]
The only remaining issue is that of costs.
In the absence of any unequivocal indication that either the Mfanta
Royal Family or the
Hala Traditional Council properly authorised the
present application, the court is reluctant to impose a costs order
against them.
In relation to the first applicant, the general rule
must be applied, viz. the respondents are entitled to their costs.
[59]
In the circumstances, the following order
is made:
(a)
the application is dismissed; and
(b)
the first applicant is directed to pay the
costs of the first, second, and sixth respondents.
JGA LAING
JUDGE OF THE HIGH
COURT
Appearances:
For
the applicants:
Adv
KD Qitsi SC
Instructed
by:
MM
Holi Attorneys
Suite
no’s 125 & 127 ECDC Building
Cnr
York Road and Elliott Street
Mthatha
Ref:
Mr MM Holi
Email:
mmholiattorneys@gmail.com
Tel:
047 531 0190 / 081 801 7482
For
the respondents:
Adv
LL Sambudla
Instructed
by:
State
Attorney
Broadcast
House
94
Sisson Street
Fort
Gale
Mthatha
Ref:
Mr M Nqiwa (1274/21-A6N)
Tel:
047 502 9900
Date
of hearing:
19
October 2023
Date
of judgment:
23
January 2024
[1]
From
the contents of MM Holi Attorneys’ letter, 9 March 2021, it is
apparent that they demanded that the MEC ‘review
and set
aside’ the decision to recognize the sixth respondent. This
was clearly outside the MEC’s powers.
[2]
The
provisions of section 6(2)(g) of PAJA grant a court the power to
judicially review an administrative action if this consists
of a
failure to take a decision.
[3]
COGTA clearly communicated the MEC’s
decision
to refuse the first applicant’s request to MM Holi Attorneys
on 14 November 2017. It subsequently communicated
confirmation
thereof on 19 April 2021; this did not amount to a fresh decision.
[4]
The
provincial Act commenced on 15 June 2017, the MEC refused the first
applicant’s request on 14 November 2017, and the
first
applicant launched his application on 8 July 2021.
[5]
JAvS
d’Oliveira, ‘Administrative Justice’, in
LAWSA
(vol 2, 3ed, 2015), at para 62.
[6]
2004
(6) SA 222
(SCA); see, too,
Judicial
Service Commission v Cape Bar Council
2013 (1) SA 170
(SCA); and
Member
of the Executive Council for Health, Eastern Cape v Kirland
Investments (Pty) Ltd t/a Eye & Laser Institute
2014 (3) SA 481 (CC).
[7]
[2004]
4 All SA 133 (SCA).
[8]
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13 (A).
[9]
1986
(2) SA 57 (A).
[10]
Associated
Institutions Pension Fund
,
supra
,
at paragraphs [46] to [48].
[11]
[2013]
4 All SA 639
(SCA), also referred to as the
OUTA
case.
[12]
2019
(6) BCLR 661 (CC).
[13]
See the discussion in
Asla
,
[44] to [72].
[14]
This
seems to have been acknowledged by the Supreme Court of Appeal in
Commissioner
for the South African Revenue Service v Sasol Chevron Holdings
Limited
2022 JDR 0978 (SCA).
[15]
1957
(4) SA 234
(C), at 235.
[16]
[1984] ZASCA 51
;
1984
(3) SA 623
(A), at 635C.