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[2023] ZAECMKHC 75
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Kona v Premier Eastern Cape and Others (3277/2018) [2023] ZAECMKHC 75 (20 June 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
NOT REPORTABLE
Case no: 3277/2018
In the matter between:
ZUKISWA
KONA
Applicant
and
THE
PREMIER, EASTERN CAPE
First
Respondent
MEC
FOR CO-OPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS (EASTERN CAPE)
Second
Respondent
PROVINCIAL
HOUSE OF TRADITIONAL
LEADERS
(EASTERN CAPE)
Third
Respondent
MBUKUMBUKU
KONA
Fourth
Respondent
NOMISILE
KONA
Fifth
Respondent
KONA
ROYAL FAMILY
Sixth
Respondent
NTSIKELELO
KWEBESE
Seventh
Respondent
JUDGMENT
Govindjee J
[1]
The
applicant seeks an extension of the 180-day period prescribed in s
7(1) of the Promotion of Administrative Justice Act, 2000
[1]
(‘PAJA’),
in respect of the institution of judicial review against the
following decisions:
[2]
(a)
‘
the decision taken by the second
respondent (‘the MEC’) in or around 2011 to recognise the
Fourth Respondent as Headman
of the Gqunqu Village in terms of s
18(3) of the 2005 Act’;
And
(b)
‘
the determination by the Eastern
Cape Provincial House of Traditional Leaders in terms of s 21(2) of
the Traditional Leadership
and Governance Act, 41 of 2003, recorded
in a report dated 6 September 2013 that the applicant was
legitimately excluded from succession
to the Headmanship of the Gunqe
Village’.
[2]
In terms of an order issued on 23 August
2019, the issue concerning the applicant’s delay in instituting
the application is
to be determined first, subject to any contrary
ruling. The parties have had full opportunity to ventilate the issue
on the papers
and during argument. The point is such that its
determination might be dispositive of the entire application. I am,
for these reasons,
inclined to deal with this issue at the outset.
Brief background
[3]
The
applicant’s case is that the headmanship of the Gqunqe Village
(‘the Village’) is, by custom, hereditary,
passing to the
eldest child of the departing incumbent. She alleges that a body
purporting to act as the Kona Royal Family refused
to identify her as
the rightful successor to her father in terms of the applicable
legislation, namely the Traditional Leadership
and Governance
Framework Act
[3]
(‘the
Framework Act’) and the Eastern Cape Traditional Leadership and
Governance Act
[4]
(‘the
Provincial Act’).
[4]
It is common cause that the MEC, as per a
delegation from the first respondent (‘the Premier’),
issued a certificate
of recognition (‘the 2011 Recognition
Decision’) recognising and appointing the fourth respondent as
headman. The applicant
confirms that she approached the Commission
for Gender Equality (‘CGE’) as early as 3 June 2011 to
seek assistance
in challenging this decision. The founding papers
explain the steps taken thereafter, purportedly as ‘internal
remedies’
prior to launching this application. It was the
applicant’s dissatisfaction with the 2011 Recognition Decision,
and the advice
that she received, that precipitated a complaint to
the Eastern Cape Provincial House of Traditional Leaders (‘the
Provincial
House’), as an internal dispute resolution process
in terms of s 21 of the Framework Act. The consequent report (‘the
Provincial House Report’), dated 6 September 2013, recorded
approval of the decision taken by the royal family in favour
of the
fourth respondent. This is linked to the request for condonation or
extension of the 180-day period prescribed in PAJA.
For reasons that
will become apparent, it is convenient to first consider the review
of the 2011 Recognition Decision.
Was there an
unreasonable or undue delay?
[5]
The
Constitutional Court has endorsed the following approach to
determining a plea of undue delay:
[5]
‘
(1)
Consider whether the delay is unreasonable or undue (a factual
enquiry upon which a value judgment is made in the light of all
the
relevant circumstances); and if so,
(2) Decide whether the
court’s discretion should be exercised to overlook the delay
and nevertheless entertain the application.’
[6]
Section 7 of PAJA provides as follows:
‘
(1)
Any proceedings for judicial review in terms of s 6(1) must be
instituted without unreasonable delay and not later than 180
days
after the date –
(a)
subject to subsection 2(c), on which
any proceedings instituted in terms of internal remedies as
contemplated in subsection 2(a)
have been concluded; or
(b)
where no such remedies exist, on which
the person concerned was informed of the administrative action,
became aware of the action
and the reasons for it or might reasonably
have been expected to have become aware of the action and the
reasons.
(2)
(a)
Subject to
paragraph (c), no court or tribunal shall review an administrative
action in terms of this Act, unless any internal remedy
provided for
in any other law has first been exhausted …’
[7]
The
prescribed 180-day time-period may be extended for a fixed period,
following application to court, where parties are unable
to agree to
this, in cases where the interests of justice so require.
[6]
Was the 2011
Recognition Decision subject to internal remedies?
[8]
In
determining whether these proceedings have been instituted within the
prescribed time period, or without unreasonable delay,
it is first
necessary to consider the issue of internal remedies. The applicant
followed a process, seemingly on the advice of
the CGE, centred on
the Provincial House. It was attempted engagement in that process
that has occupied the time of the applicant
and her advisors for
parts of the period between the end of 2011 and 2018, when the
application was launched. It was the outcome
of that process that was
penned during 2013 but only communicated to the applicant in 2017. If
that approach constituted a process
properly instituted as an
internal remedy ‘provided for in any other law’, it would
affect the calculation of the 180-day
period in terms of PAJA in
favour of the applicant. If not, the proverbial clock started running
from the date that the applicant
became aware or reasonably ought to
have become aware of the administrative action.
[7]
In
that case, the circumstances surrounding the approach to the
Provincial House, are factors to be considered as part of the
explanation
for the delay.
[9]
Various
decisions of the SCA and Constitutional Court, which have considered
similarly worded provincial legislative provisions
and interpreted
the relevant sections of the Framework Act, have clarified the
position. In
Tshivhulana
,
[8]
the
Constitutional Court considered s 21 of the Framework Act, following
a High Court’s decision that internal remedies were
to be
exhausted prior to a review application. As in the present instance,
the High Court had been approached on the basis that
the Premier’s
decision to recognise the respondent as a village headman ought to be
reviewed and set aside. The point
in
limine
considered by the Constitutional Court was whether the appellant had
failed to exhaust the internal remedies prescribed by s 21
of the
Framework Act, prior to reviewing the Premier’s decision in
terms of PAJA. The Court interpreted that section as follows:
[9]
‘
The
dispute may be referred from one level to the next only if it is
unresolved. When a definitive decision is taken at any level,
the
aggrieved party does not have any further internal recourse. This is
so because none of the levels is a review or appeal level.
A decision
at any level gives the aggrieved party the right to exit the internal
structure and approach a court for appropriate
relief.’
[10]
In
addition:
[10]
‘
The
dispute or claim that should be subjected to the internal remedies
prescribed in section 21 must be one
between
or within
traditional communities or
customary institutions as defined in the Framework Act … [the
applicant] presented the dispute
in the High Court as the unlawful or
irregular recognition of the respondent by the Premier … The
dispute is between [the
applicant] and the Premier. The Premier is
not a traditional community or customary institution. It is highly
unlikely that the
Legislature would have contemplated a dispute
between the Premier and a traditional community or a customary
institution to fall
within the purview of section 21(1)
(a)
of the Framework Act. This is so because the Premier is part of the
internal dispute resolution institutions or persons in section
21. It
would be absurd to have the Premier simultaneously as a party to and
resolver of the dispute. In recognition disputes, the
Premier’s
decision would invariably be impugned because he or she is the
recognising authority. Having decided the issue,
he or she would be
disqualified to resolve the dispute about his or her alleged unlawful
conduct … the section 21 dispute
resolution remedies are not
applicable when the Premier’s action is challenged …’
[11]
The
judgment of Mogoeng JP in
Mamogale
,
[11]
cited
with approval in
Tshivhulana
,
further elucidates the position:
‘
The
Premier of this Province has pronounced herself … on the
recognition of the second respondent as his replacement. This
decision has elevated what once was an internal dispute, potentially
capable of internal resolution, to a dispute between a faction
of the
Royal Family … and the Provincial Government … which
has caused the resolution to no longer be internal. A
truly internal
dispute is, in the context of this case, capable of being resolved by
the Royal Family through customary laws, customs
and processes …
once the Premier takes a decision, the dispute loses every semblance
of being internal …’
[12]
Applying these decisions, the 2011
Recognition Decision was a definitive decision which precluded
internal recourse. As the subsequent
dispute involved the Premier or
their delegate, it was clearly not one that was ‘between or
within traditional communities’,
and the s 21 Framework Act
dispute resolution remedies were inapposite. Instead, this court
ought to have been approached in terms
of PAJA, on the timeframes
applicable to review of administrative action where no internal
remedies existed.
[13]
In
addition, it may be noted that PAJA’s references to ‘
any
internal remedy’ in s 7(2)
(a)
,
read with s 7(1)
(a)
,
is specific to ‘any internal remedy provided for
in
any other law
’
in respect of the impugned decision. The referral to the
Provincial House simply did not fit the bill in respect of
the 2011
Recognition Decision. As a result, the applicant was engaged, between
3 June 2011 and November 2018, when this application
was launched, in
‘attempted dispute resolution’ in circumstances where no
internal remedy was prescribed or could have
been utilised in order
to challenge the 2011 Recognition Decision. On the applicant’s
own papers, this date in June 2011
may be taken as the date on which
she became aware of the impugned administrative action. Instead of
launching the review sometime
during the subsequent 180 days, the
application was filed some seven years late.
[12]
[14]
Judicial
review proceedings should be initiated without unreasonable
delay.
[13]
In
Gqwetha
v Transkei Development Corporation and Others
,
[14]
Nugent
JA explained the rationale for this as follows:
‘
[22]
It is important for the efficient functioning of public bodies …
that a challenge to the validity of their decisions
by proceedings
for judicial review should be initiated without undue delay. The
rationale for that longstanding rule … is
twofold: First, the
failure to bring a review within a reasonable time may cause
prejudice to the respondent. Secondly, and in
my view more
importantly, there is a public interest element in the finality of
administrative decisions and the exercise of administrative
functions. As pointed out by Miller JA in
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) at 41E-F (my translation):
“
It
is desirable and important that finality should be arrived at within
a reasonable time in relation to judicial and administrative
decisions or acts. It can be contrary to the administration of
justice and the public interest to allow such decisions or acts
to be
set aside after an unreasonably long period of time has elapsed –
interest republicae ut sit finis litium
… Considerations of this kind undoubtedly constitute part of
the underlying reasons for the existence of this rule.”
[23] Underlying that
latter aspect of the rationale is the inherent potential for
prejudice, both to the efficient functioning of
the public body and
to those who rely upon its decisions, if the validity of its
decisions remains uncertain. It is for that reason
in particular that
proof of actual prejudice to the respondent is not a precondition for
refusing to entertain review proceedings
by reason of undue delay,
although the extent to which prejudice has been shown is a relevant
consideration that might even be
decisive where the delay has been
relatively slight (
Wolgroeiers Afslaers
, above, at 42C).
[24] Whether there has
been undue delay entails a factual enquiry upon which a value
judgment is called for in the light of all
the relevant circumstances
including any explanation that is offered for the delay (
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en ‘n
Ander
1986 (2) SA 57
(A) at 86D-F and 86I-87A). A material fact
to be taken into account in making that value judgment –
bearing in mind the rationale
for the rule – is the nature of
the challenged decision. Not all decisions have the same potential
for prejudice to result
from their being set aside.’
[15]
In
the case of PAJA reviews, s 7 of the Act creates a presumption that a
delay of longer than 180 days is ‘per se unreasonable’.
[15]
The
delay in reviewing the 2011 Recognition Decision was clearly
unreasonable, being well in excess of the prescribed 180-day period.
It was not suggested otherwise, counsel for the applicant rightly
conceding the point. Nonetheless, the obligatory nature of dealing
with both legs of the test has been highlighted, so that even an
unreasonable delay cannot be ‘evaluated in a vacuum’.
[16]
What
remains to be considered, and involves the exercise of a so-called
true discretion,
[17]
is
whether the court should overlook the delay and nevertheless
entertain the application in the interests of justice.
[18]
Should the delay be
condoned?
[16]
A
court is only empowered to entertain the review application if the
interests of justice dictate an extension in terms of s 9 of
PAJA,
and absent such extension there is no authority to entertain the
review application at all.
[19]
Condonation
for failure to comply with the time period prescribed by PAJA in
traditional leadership disputes is not simply there
for the asking,
and a proper explanation is necessary.
[20]
The
court has a discretion whether or not to grant condonation. It is
trite that the discretion must be exercised in a judicial
manner,
with due regard to the nature of the relief sought, the extent and
cause of the delay and its effect upon the administration
of justice,
the reasonableness of the explanation for the delay, whether or not
the delay has caused prejudice to the other parties,
the importance
of the issue for determination to the parties and the applicant’s
prospects of success. The overarching focus
remains consideration of
what outcome would be in the interests of justice.
[21]
[17]
In
Camps
Bay
,
Maya JA confirmed the position as follows:
[22]
‘…
the
question whether the interests of justice require the grant of such
extension depends on the facts and circumstances of each
case: the
party seeking it must furnish a full and reasonable explanation for
the delay which covers the entire duration thereof
and relevant
factors include the nature of the relief sought, the extent and cause
of the delay, its effect on the administration
of justice and other
litigants, the importance of the issues to be raised in the intended
proceedings and the prospects of success.’
The explanation of the
delay
[18]
It
is expected that a party applying for condonation will give a full
and honest explanation for the whole period of the delay.
[23]
The
extent and cause of the delay are also pertinent considerations. The
reasonableness of the delay must be examined with reference
to the
explanation offered for the delay.
[24]
Importantly,
an explanation for the delay must cover its entirety.
[25]
According
to Hoexter and Penfold, the explanation for the delay, and its
reasonableness, assumes greater importance in PAJA reviews
when
considering that these factors would not necessarily have been
interrogated in the first leg of the test (when the delay exceeds
180
days).
[26]
[19]
Given the misguided understanding of the
purported internal remedy, it is unsurprising that the case for
extension of the prescribed
period is dealt with only briefly in the
founding papers. A limited explanation has been provided in
explaining the years of delay,
also after the purported internal
remedy decision was taken in 2013. Reliance is placed squarely on an
abortive referral of the
matter to the Premier via COGTA’s Head
of Department, the applicant assuming that each of the processes
described in s 21
of the Framework Act was a precursor to a court
application. Once advised that the Premier would not entertain the
dispute further,
the application was launched without undue delay.
The applicant also submits that no prejudice would result from an
extension granted,
and fails to deal with the prospects of success
under this heading.
[20]
It
is relevant to consider that the applicant attempted to resolve the
dispute through the Provincial House prior to resorting to
court.
[27]
The
applicant concedes that this process was incorrectly invoked, based
on the advice of COGTA. But that cannot on its own justify
subsequent
inaction of the kind that followed. It does not avail the applicant
to lay the blame for all delays at the door of the
CGE in
circumstances where the applicant fails to explain her own conduct in
pursuing the matter through the CGE or otherwise,
or to obtain the
outcome of the process considered to be an internal remedy. As the
papers demonstrate, the CGE’s assistance
was provided
sporadically and, even making some allowance for the usual
difficulties of dealing with a bureaucracy, the overall
pace adopted
was sedentary.
[21]
For example, for a year subsequent to
August 2011, all that was achieved was a single meeting following
protracted correspondence.
Nothing occurred between October 2011 and
June 2012. Representatives of the Eastern Cape Department of
Cooperative Governance and
Traditional Affairs (‘COGTA’)
advised the CGE that the Provincial House was the correct forum to
resolve the dispute.
That was at a meeting on 14 August 2012, but
nothing transpired for another three months. Correspondence reflects
that once the
dispute was referred to the Provincial House on 8
November 2012, the CGE, based on an undertaking received from COGTA,
expected
finalisation within 90 working days from 14 January 2013.
There is nothing on the papers to suggest that it did not keep the
applicant
appraised of such developments. A public hearing was
convened in February 2013. Despite the expectation of an outcome on
24 May
2013, little seems to have occurred until the CGE summoned
COGTA’s Head of Department to a meeting during February 2015,
and the Department of Cooperative Governance and Traditional Affairs
addressed a letter to the Kona Royal Family in May 2015. In
the
applicant’s own words, ‘despite numerous inquiries the
report of the Provincial House was not provided, nor were
any further
steps taken by COGTA in connection with the dispute for almost two
years’. A letter was addressed to the Head
of Department in
June 2013. The subsequent family meeting occurred only in September
of that year. Other than generic correspondence
from the CGE in
September 2016, only in January 2017 was a follow-up to the
outstanding report from the Provincial House sought,
some years after
it had been expected. As the applicant acknowledges, at least from
September 2015 to December 2016 there was no
progress at all on this
matter, despite some letters having been addressed to COGTA by the
CGE and a complaint to the Premier regarding
departmental inaction in
certain matters.
[22]
The Acting Head of Department: Cooperative
Governance and Traditional Affairs was eventually summoned to appear
before the CGE in
April 2017, resulting in the outcome letter, dated
6 September 2013, being provided on 12 April 2017. The applicant
received advice,
via the CGE, from the Acting Head of Department on 6
June 2017, proposing that the applicant submit an appeal to the
Executive
Authority, which followed on 13 June 2017. Other than a
meeting with the MEC and HoD on 30 November 2017, when it was
suggested
that an outcome would be furnished by 28 February 2018,
nothing occurred until 26 April 2018, when the MEC indicated that an
appeal
was not possible. Legal advice was sought and an application
prepared only during September 2018. The founding affidavit launching
these proceedings was commissioned more than a month thereafter.
[23]
The
applicant has failed to confront the excessive delay meaningfully and
with full reference to her own conduct during the years
that have
lapsed.
[28]
The
CGE failed to pursue the matter with any urgency, despite the lengthy
period of time that elapsed since the applicant sought
its
assistance. Neither the applicant nor the CGE appear to have even
attempted to seek legal advice until at least May 2018. There
is
nothing on the papers explaining any serious attempts on the part of
the applicant to accelerate proceedings, notwithstanding
the nature
of the relief sought and its importance to her, and considering that
the fourth respondent remained in the position.
It must be accepted
that she was content to permit the CGE to engage in protracted
correspondence spanning an inordinate period
of time, blindly
expectant of those efforts yielding an outcome that would overturn
the recognition of the fourth respondent in
2011. Notwithstanding due
consideration of the fact that the CGE and applicant received
erroneous advice, the explanation provided
for the subsequent delays
in obtaining the 2013 Provincial House Report is incomplete and
wholly inadequate when considering the
substantial period of
delay.
[29]
Even
if this had constituted an internal remedy in terms of s 7(1)
(a)
of PAJA, those proceedings were concluded during 2013, and the
explanation for the excessive delay in launching the review is
inadequate. The applicant’s attitude, contrary to what might
have been expected, was indifferent and it cannot be said that
all
reasonable steps were taken.
[30]
The
applicant must, as a result, bear significant responsibility for the
extensive delay when considering the limited explanation
offered.
[31]
[24]
The
difficulties in granting condonation in such circumstances have been
articulated in decided cases. In instances where the unlawfulness
of
the impugned action is not clear-cut, it must be accepted that delay
to this extent may accentuate the risk that the review
is adjudicated
on the basis of unreliable facts. This potentially includes prejudice
where, as a result of the delay, the recollections
of parties or the
person whose decision is being reviewed is likely to have paled;
persons who have to depose to affidavits or
testify may no longer be
available; and where documentary or other forms of evidence are no
longer available.
[32]
The prospects of
success and the importance of the issue
[25]
Even
though the issue at hand has been elevated, as described, to be
determined at the outset of these proceedings, and notwithstanding
the above sentiments, delay is not a purely interlocutory matter to
be determined in isolation.
[33]
Regard
must still be had to the merits, or prospects of success, in deciding
whether the delay should be condoned.
[34]
This
is not to suggest that prospects of success will be determinative on
its own. Instead, the merits are important as part of
a consideration
of all the circumstances in determining whether the interests of
justice dictate that the delay should be condoned.
[35]
[26]
Assessing the prospects of success is
complicated by the applicant’s failure to deal with this
cohesively on the papers, and
particularly because of the lengthy
period of time that has elapsed since the impugned decision was
taken. In essence, the applicant’s
case is that she was the
rightful successor to the headmanship in the Village after her
father’s passing in 2006 and that
she was wrongfully excluded
from succession because of her marital status. The Kona royal family,
or a body purporting to speak
for the family, identified the
applicant’s mother to serve as acting headwoman of the Village
on behalf of her sister, until
such time as her sister was old enough
to assume the position. That decision, which was formalised by the
MEC in terms of s 18(3)
of the Provincial Act in 2008, is no longer
the subject of any challenge. The applicant’s mother was
removed from the
position in 2011, when the applicant’s uncle,
the fourth respondent, was recognised by the MEC.
[27]
The
Provincial Act makes it clear that it is the task of the royal family
to identify a person qualifying in terms of customary
law to assume
the position in question, and to inform the Premier of the
particulars of that person and the reasons for the identification.
It
is the Premier’s responsibility to recognise the person
formally, and to issue a certificate of recognition.
[36]
[28]
The applicant concedes that the royal
family is the competent body to determine the successor when a
vacancy arises, rather than
the broader community. Although there is
some suggestion that only ‘a fraction of the members of royal
family’ attended
the meeting that resulted in her mother being
recognised, it is clear that the body that made the decision applied
its mind in
coming to that decision, which paved the way for the
formal recognition that followed. The applicant claims that she was
erroneously
excluded from the line of succession, ultimately in
favour of her sister and mother, because of a false claim that she
had been
married. Significantly, there is no suggestion that, at the
time, the applicant took steps to right the perceived wrong by taking
any steps whatsoever to press her claim based on the appropriate,
customary line of succession.
[29]
She failed to act even once her mother was
removed, during 2010, resulting in her uncle’s recognition. Her
first attempt to
intervene was only in June 2011. Much of her
dissatisfaction stems from the Provincial House’s summation of
the reasons provided
to it for the applicant’s exclusion by the
royal family. It may be reiterated that the ‘findings’ of
the Provincial
House were crafted some two years after the 2011
Recognition Decision and were by no means a proper appeal of that
decision. That
the Provincial House ‘simply deferred to the
decision of the royal family’ is, in any event, unsurprising
given the
functions to be performed by the royal family in terms of
the Provincial Act.
[30]
At
best for the applicant, it may be accepted that the process that
resulted in the fourth respondent’s identification and
recognition was questionable, especially considering that the
position was not vacant at the time. As the SCA has recently
confirmed,
the recognition of the fifth respondent as regent would
have proceeded on the basis of a recognised administrative decision
(to
appoint the applicant’s sister) preceding the recognition
of the regent.
[37]
Absent
that administrative conduct being set aside, both the MEC and Premier
could not lawfully recognise another identified headman
nor purport
to appoint such person to the position of headman or acting
headman.
[38]
But
these are realities that might have demonstrated the prospects of
success of the applicant’s sister or mother, and are
of no
benefit to the applicant’s own claim to the position.
[39]
[31]
This
is a further issue of relevance. It has previously been established
that a court is unlikely to grant an extension where the
passage of
time means that the issue is of little practical import.
[40]
In
the present circumstances, the years spent by the fifth respondent in
the role are uncontested. The fourth respondent’s
contested
identification and recognition has been followed by uninterrupted
years spent in the role prior to his passing. The applicant
concedes
that he became the
de
facto
headman
of the Village and was treated as such following meetings in November
and December 2010. He attended to duties as headman
from 2011 until
he became too ill to do so prior to his passing in 2021. The
practical impact of reviewing and setting aside the
impugned
decisions in circumstances where the position is presently vacant is
questionable and arguably of little practical import.
[41]
Although
the issue is undeniably of importance to the applicant, this is
balanced by the likely negative impact on the community
in the event
that the application succeeds in these circumstances, and considering
the extensive history of the matter.
[42]
[32]
As
an aside, I do not read the papers in a way that permanently
precludes the applicant from being identified and recognised as
a
traditional leader in the Village. It is open to the royal
family to identify the appropriate traditional leader in terms
of the
customs of the community and in accordance with the presently
applicable legislation, for the Premier to publish a notice
and
invite comments, and to then consider and ‘decide on the
comments’ before recognising the person.
[43]
The
purported identification of the seventh respondent, if contrary to
legislation, may, in appropriate circumstances, also be referred
to
the Provincial House for a proper recommendation, which might also
result in the matter being referred back to the royal family
for
reconsideration. This is part of the reason why the declaratory
relief sought in the papers was ill-conceived, and rightly
jettisoned
during argument as over-ambitious.
[44]
A
declaratory order by this court on the present papers would be
tantamount to usurping the functions of the royal family and premier,
as well as the process prescribed in terms of the applicable
legislation.
[33]
The
exercise of a discretion in determining the issue of condonation has
been described as involving a ‘factual, multifactorial
and
context-sensitive framework’.
[45]
The
considerations that favour granting condonation are heavily
overshadowed by the range of countervailing factors identified,
notably the extent and cause of the delays, the partial explanation
for the delays, the limited prospects of success and likely
prejudice
to the community.
[46]
Ultimately,
I do not consider it to be in the interests of justice to exercise my
discretion to overlook the extensive delays and
entertain the
application in respect of the review of the 2011 Recognition
Decision.
[47]
[34]
This
conclusion is fatal to the attempt to review the Provincial House
Report as an internal appeal decision. As Plasket J held
in
Wings
Park Port Elizabeth (Pty) Ltd v MEC, Environmental Affairs, Eastern
Cape and Others
,
[48]
when
an applicant has suffered an unfavourable decision at first instance
and it is confirmed on appeal, both decisions must be
taken on review
and, for the applicant to achieve success, usually both decisions
will have to be set aside.
[49]
In
other words, even accepting for present purposes that the Provincial
House Report constituted an internal remedy, setting that
aside in
circumstances where the 2011 Recognition Decision stands would be
pointless for purposes of this application.
[50]
The
consequence is that the application must be dismissed.
Costs
[35]
Counsel
furnished useful supplementary heads of argument in respect of costs
and, in particular, in answer to the question as to
the applicability
of
Biowatch
.
[51]
That
decision explains the appropriate approach to adopt in unsuccessful
constitutional litigation against the state. Constitutional
litigation is that which has been undertaken to assert constitutional
rights.
[52]
As
a general rule, an unsuccessful litigant in proceedings against the
state ought not to be ordered to pay costs.
[53]
[36]
A
court must exercise its discretion by doing that which is just
considering the facts and circumstances of the case. The general
approach of not awarding costs against an unsuccessful litigant in
genuine constitutional proceedings against the state should
not
easily be forsaken. To fit the bill, the issues must be genuine and
substantive and truly raise constitutional considerations
relevant to
the adjudication.
[54]
[37]
The
relief sought in the present matter involves, at its core, state
functionaries acting, or purporting to act, in terms of statutorily
delineated responsibilities. The sixth and seventh respondents have
been dragged into the litigation and argue that the applicant,
having
been unsuccessful, should pay their costs. Sachs J described the
position as follows:
[55]
‘
In
matter such as these a number of private parties might have opposite
interests in the outcome of a dispute where a private party
challenges the constitutionality of government action. The fact that
more than one private party is involved in the proceedings
does not
mean however, that the litigation should be characterised as being
between the private parties. In essence the dispute
turns on whether
the governmental agencies have failed adequately to fulfil their
constitutional and statutory responsibilities.
Essentially,
therefore, these matters involve litigation between a private party
and the state, with radiating impact on other
private parties. In
general terms costs awards in these matters should be governed by the
over-arching principle of not discouraging
the pursuit of
constitutional claims, irrespective of the number of parties seeking
to support or oppose the state’s posture
in the litigation.’
[38]
These
comments are apposite considering the facts of this dispute. The
purpose of the application was to assert the applicant’s
entitlement to recognition as headwoman of the Gqunqe Village in
terms of the Provincial Act following the death of her father.
The
crux of the challenge was the complaint of her unconstitutional
exclusion from succession based on marital status. The applicant
asserted a constitutionally protected right. To succeed, decisions
taken by state respondents were sought to be reviewed and set
aside.
I am satisfied that this constituted a bona fide attempt to raise an
issue of genuine constitutional significance, namely
whether a
customary rule excluding a woman from succession to traditional
leadership positions based on marital status would constitute
unfair
discrimination. The application was non-frivolous, non-vexatious and,
considering the circumstances, not in any other way
manifestly
inappropriate. This despite the applicant’s failure to obtain
the required extension of time, for reasons already
canvassed.
[56]
A
costs order in such circumstances would, in my view, hinder the
advancement of justice. That being the case, it is appropriate
for
each party to bear its own costs.
[57]
Order
[39]
The following order will issue:
1.
The
application is dismissed.
2.
Each
party is to pay its own costs.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard
:
22 & 23 May 2023
Delivered
:
20 June 2023
Appearances
For
the Applicant:
Adv
J Blomkamp & Adv L Ntlokwana
Cape
Town, Makhanda Chambers
Instructed
by:
Yokwana
Attorneys
Applicant’s
Attorneys
10
New Street
Makhanda
Email:yokwanaattorneys@telkomsa.net
For
the 6
th
& 7
th
Respondents:
Adv
L Crouse
Club
Chambers,
Gqeberha
Instructed
by:
Luxolo
Peko Attorneys
Respondent’s
Attorneys
09
Fuller Street
Butterworth
Email:
luxpeko@gmail.com
[1]
Act 3 of 2000.
[2]
The applicant initially sought to also review the recognition of her
mother as Headwoman during 2008, but abandoned this relief
prior to
the commencement of argument in the matter.
[3]
Act 41 of 2003.
[4]
Act 4 of 2005.
[5]
See
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal
2014 (3) BCLR 333
(CC) (
Khumalo
)
para 49, as confirmed in
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
2019
(6) BCLR 661
(CC) (
Asla
).
[6]
S 9 of PAJA.
[7]
S 7(1)
(b)
of PAJA. See, in general,
Reed
and Others v Master of the High Court of SA and Others
[2005] 2 All SA 429
(E) paras 20-25.
[8]
Tshivhulana
Royal Family v Netshivhulana
[2016] ZACC 47
(
Tshivhulana
).
[9]
Ibid
para
32.
[10]
Ibid paras 35, 37, 38, 40, 43.
[11]
Mamogale
v Premier, North West
[2006]
ZANWHC 63
paras 19-20.
[12]
See
Premier
of the Eastern Cape and Others v Ntamo and Others
[2015]
ZAECBHC 14;
2015 (6) SA 400
(ECB) para 65. Also see
Members
of the Murangoni Royal Family and Another v Tshivhase Traditional
Council and Others
[2021]
ZALMPTHC 7 paras 9-11. Cf
Kobe
and Others v Lebogo and Others
[2021] ZALMPPHC 31. For reasons that will become apparent, the
position would, in the circumstances of this matter, be the same
even if the appeal to the Provincial House had constituted an
internal appeal in terms of PAJA.
[13]
City of
Cape Town v Aurecon South Africa (Pty) Ltd
[2017] ZACC 5
;
2017 (4) SA 223
(CC) (
Aurecon
)
para 37.
[14]
Gqwetha
v Transkei Development Corporation and Others
[2006] 3 All SA 245
(SCA) paras 22 – 24.
[15]
Opposition
to Urban Tolling v South African National Roads Agency Ltd
[2013] ZASCA 148
;
[2013] 4 All SA 639
(SCA) (
OUTA
)
para 26.
[16]
Khumalo
above
n 5 para 49.
[17]
See
Member
of the Executive Council for Cooperative Governance and Traditional
Affairs, KwaZulu-Natal v Nkandla Local Municipality
and Others
[2021] ZACC 46
para 58;
Notyawa
v Makana Municipality
[2019] ZACC 43
(
Notyawa
)
paras 40-41.
[18]
See, for example,
Gongqose
and Others; S v Gongqose and Others v Minister of Agriculture,
Forestry and Fisheries and Others
[2016]
ZAECMHC 1;
[2016] 2 All SA 130
(ECM);
2016 (1) SACR 556
(ECM)
(
Gongqose
)
para 68.
[19]
OUTA
above
n 15 para 26. In such an instance, whether or not the decision was
unlawful is immaterial as the decision has been ‘validated
by
the delay’. It may be added that the applicant did not rely on
the
Gijima
principle,
so that there is no need to enter the debate as to whether the
principle may possibly be applicable to PAJA reviews:
see
C
Hoexter and G Penfold
Administrative
Law in South Africa
(3
rd
Ed) (Juta) (2021)
at
730, 731. For the sake of completeness, it may be noted that this
was not a case of ‘clear and indisputable’ illegality
or
unlawfulness akin to the circumstances in
Central
Energy Fund SOC Ltd v Venus Rays Trade (Pty) Ltd
[2020] ZAWCHC 164
para 298.
[20]
Mbabama
v Premier of the Eastern Cape and Others
[2022] ZAECMHC 36 para 13.
[21]
See, for example,
Matiwane
v President of the Republic of South Africa and Others
[2019] ZAECMHC 23;
[2019] 3 All SA 209
(ECM) paras 13, 14.
[22]
Camps
Bay Ratepayers’ and Residents’ Association v Harrison
[2010]
2 All SA 519
(SCA) para 54. Also see
Aurecon
above n 13 para 47.
[23]
Asla
above
n 5 para 80.
[24]
Khumalo
above n 5 para 44.
[25]
Department
of Transport v Tasima (Pty) Ltd
[2016]
ZACC 39
;
2017 (2) SA 622
(CC) (
Tasima
I
)
para 153.
[26]
Hoexter
and Penfold above n 19 at 728.
[27]
OUTA
above
n 15 paras 29-30.
[28]
See
Sithelo
Royal Family and Another v The Premier of the Eastern Cape and
Others
[2021] ZAECMHC 28 para 23. Where an application seeks condonation
for delay, a full explanation that covers the ‘entire
period’
must be provided:
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC) para 22. Also see
Notyawa
above
n 17.
[29]
See
Beweging
vir Christelik-Volkseie Onderwys v Minister of Education
[2012] 2 All SA 462
(SCA) (
BCVO
)
para 64. This is a key distinction between the facts of this matter,
which involve unwarranted lethargy in pursuing a supposed
internal
appeal, and cases such as
Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and
Others
[2010] ZACC 26
;
2011 (4) SA 113
(CC) (
Bengwenyama
Minerals
),
where apparent confusion about the availability of an internal
appeal warranted a short delay in pursuing review proceedings:
Bengwenyama
Minerals
para 59. The applicant’s reliance on this decision is in any
event misplaced on the facts. In that matter the time lines
were
such that the court found that there was no indication of any
deliberate delay on the part of the applicants and a department
letter opened the door for a review:
Bengwenyama
Minerals
paras 57, 58. Also see
Joint
Municipal Pension Fund v Grobler and Others
2007 (5) SA 629
(SCA) paras 29, 30: the issue relating to time was
not pressed during argument in circumstances where there was no
provision
in law for a complaint to an adjudicator as an internal
remedy. The unduly delay was, however, for a much shorter period and
the application to court was launched with sufficient promptness, so
that the interests of justice warranted condonation.
[30]
See
Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005 (2) SA 302
(SCA) para 51.
[31]
See
Khumalo
above
n 5.
[32]
See
Madikizela-Mandela
v Executors, Estate Late Mandela
2018 (4) SA 86
(SCA) para 27.
[33]
Hoexter and Penfold above n 26 at 729.
[34]
Asla
above
n 5 paras 55-57;
Aurecon
above n 13 paras 46, 49.
[35]
Asla
above
n 5 para 40;
SANRAL
v Cape Town City
2017 (1) SA 468
(SCA) para 81.
[36]
S 18 of the Provincial Act.
[37]
Maxwele
Royal Family & Another v The Premier of the Eastern Cape
Province and Others
[2023] ZASCA 73
para 13.
[38]
Ibid.
[39]
There
are also no constitutional obligations compelling the granting of
the remaining relief sought: see
Dabula-Mbanga
v The Premier of the Eastern Cape and Others
(unreported case no. 4715A/2019) (Eastern Cape Division, Mthatha)
(22 March 2022) para 46.
[40]
BCVO
above
n 29 para 65.
[41]
Ibid. Also see
Notyawa
above
n 17 para 45 and following.
[42]
In saying this, the court is mindful of the development to the law
brought about by PAJA and the Constitution, particularly the
rights
to just administrative action and access to courts, and that the
issue of prejudice may, in an appropriate case, adequately
be
addressed by the grant of a just and equitable order:
Notyawa
above
n 17 para 51 and following.
[43]
S 23 of the Eastern Cape Traditional Leadership and Governance Act,
2017 (Act 1 of 2017).
[44]
The notice of motion included a prayer for a declaration ‘that
the customary rule governing succession to the Gqunqe headmanship
is
that the position is inherited by the eldest child of the previous
incumbent upon his or her death or removal from the office,
regardless of that child’s marital status’. On the
applicant’s own papers, however, ‘the Gqunqe headmanship
was only established in 1992 and this is the first time that the
question of succession has arisen in connection therewith. How
could
a settled rule or practice sufficient to constitute a custom arise
in these circumstances?’
[45]
Tasima
I
above
n 25 para 144.
[46]
See
Gongqose
above
n 18 para 73.
[47]
See
State
Information Technology Agency SOC Limited v Gijima Holdings (Pty)
Limited
[2017] ZACC 40
para 49. As indicated, the position would be the
same, on these facts, even if the Provincial House outcome was
considered to
be an internal appeal decision.
[48]
Wings
Park Port Elizabeth (Pty) Ltd v MEC, Environmental Affairs, Eastern
Cape and Others
2019 (2) SA 606
(ECG) (
Wings
Park
)
paras 34 and 46.
[49]
Also see
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
t/a Eye and Laser Institute
2014 (3) SA 219
(SCA) paras 20-21.
[50]
See
Wings
Park
above
n 48 para 47;
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA) para 28.
[51]
Biowatch
Trust v Registrar Genetic Resources and Others
2009 (6) SA 232
(CC) (
Biowatch
).
[52]
Ibid para 20.
[53]
See
Affordable
Medicines Trust and Others v Minister of Health and Another
[2005] ZACC 3
;
2006 (3) SA 247
(CC) para 139. On the three-fold
rationale for the general rule, see
Biowatch
above n 51 para 23.
[54]
Biowatch
above n 51 para 25.
[55]
Biowatch
above
n 51 para 28.
[56]
See
Lawyers
for Human Rights v Minister in the Presidency and Others
[2016]
ZACC 45
para 19.
[57]
See
Rikhotso
v Premier, Limpopo Province and Others
[2021] ZACC 1
para 25;
Notyawa
above
n 17 para 55;
Baleni
v Baleni and Others
[2012] ZAECMHC 19 para 60. Compare,
BCVO
above n 29 para 69.