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2024
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[2024] ZAECMHC 17
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Sithelo and Another v Premier of the Eastern Cape Province and Others (2607/2022) [2024] ZAECMHC 17 (9 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Reportable
Case
no: 2607/2022
In
the matter between:
THULANI
PATRICK
SITHELO
1
ST
APPLICANT
SITHELO
ROYAL
FAMILY
2
ND
APPLICANT
and
PREMIER
OF THE EASTERN CAPE PROVINCE
1
ST
RESPONDENT
MEC
FOR COOPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS
2
ND
RESPONDENT
GWADISO
/ KHIWA ROYAL FAMILY
3
RD
RESPONDENT
DUMISANI
GWADISO
4
TH
RESPONDENT
MPUMALANGA
GWADISO
5
TH
RESPONDENT
THOZAMILE
SITHELO
6
TH
RESPONDENT
Date
heard:
07 March 2024
Date
delivered:
09 April 2024
JUDGMENT
Notyesi
AJ
Introduction
[1]
Justice
Khampepe, writing a majority judgment on behalf of Justices of the
Constitutional Court once remarked –
‘
Like
all things in life, like the best times and the worst of times,
litigation must, at some point, come to an end…’
[1]
[2]
The
parties to the present application have a long history of litigation.
Their unending legal dispute is about the incumbency of
the
headmanship for Lower Ndungunyeni Administrative Area, Ngqeleni.
There had been no less than three court applications between
the
parties. In 2020, the applicants launched proceedings against the
first, second, third and fifth respondents seeking for a
relief that
the first and second respondents should be compelled to recognise the
first applicant to be the headman of Lower Ndungunyeni
Administrative
Area. Jolwana J found that there was an undue delay and dismissed the
application. A previous application launched
under case number
4159/2018 was withdrawn by the applicants.
[3]
Madlanga
J once remarked
[2]
-
‘
Hopefully
this is the final round of this sorry saga of bitter litigious
feuding between two brothers. At its centre is what Van
Oosten J of
the High Court of South Africa, Gauteng Division, Pretoria described
as a dispute “embedded in rivalry, jealously,
greed and
hatred”.’
[4]
The
applicants, third, fourth, fifth and sixth respondent are the
decedents of Khonjwayo, the founder of Amakhonjwayo tribe. They
are
all resident at Ngqeleni. The headmanship of Ndungunyeni
Administrative Area is what splits the brothers. Surely, the
community
would be susceptible as a result of the dispute.
[5]
In
these proceedings, the applicants are seeking for an order declaring
the first applicant to be the only rightful and legitimate
heir to
the position of headman of Lower Ndungunyeni Administrative Area. The
applicants are also seeking further ancillary reliefs
in their notice
of motion. At the commencement of the hearing, the applicants
abandoned the request for further reliefs and only
persevered with
the relief for the declaratory of the first applicant as the headman
of the area.
[6]
The
relief is opposed by the third to sixth respondents on the basis that
the applicants have failed to meet the requirements for
the grant of
condonation in respect of the late institution of the proceedings and
that the matter has already been determined
by the court.
[7]
On
a proper conspectus, there are three questions to be determined –
(a)
whether
or not the applicants had met the requirements for the grant of
condonation; and, if so;
(b)
whether
or not the matter is
res judicata;
(c)
if
the matter is not
res judicata
, whether or not the applicants
have made out a case for the relief.
[8]
I
do point out that the first two questions are independently
dispositive of the matter should the court uphold the contentions
of
the opposing respondents.
Parties
[9]
For
the sake of convenience, I will simply refer to the applicants as ‘
Mr
Sithelo’
and ‘
Sithelo
Royal Family’
. The respondents
would be referred to as ‘
The
Premier’
, ‘
The
MEC’, ‘Gwadiso / Khiwa Royal Family’, ‘Chief
Dumisani Gwadiso’
and the
other respondents shall be referred to as they appear from the
pleadings.
Background
[10]
The
dispute is about the headmanship of Lower Ndungunyeni in the district
of Ngqeleni. Lower Ndungunyeni is part of Amakhonjwayo
Traditional
Community. The traditional council for the traditional community is
known as Amakhonjwayo Traditional Council. The
royal family for the
senior traditional leader of Amakhonjwayo is the Khiwa Royal Family,
often referred to as ‘Khiwa Royal
Family’. In the
founding affidavit, Mr Sithelo described himself as a direct
descendent in the royal lineage of Amakhonjwayo.
[11]
According
to Mr Sithelo, he is the son of Hlathikhulu, who was the headman of
the area. During 2014, when the health of Mr Sithelo’s
father
deteriorated, he was installed as a core regent. On the passing of
his father, he was identified by the Sithelo Royal Family,
to succeed
his late father. His father had died on 26 August 2016. Mr Sithelo
has alleged that the Sithelo Royal Family is independent
from the
Khiwa Royal Family.
[12]
According
to Mr Sithelo, his royal family submitted resolutions to the Premier
and the MEC for his recognition after he had been
identified. On 22
August 2017, the Premier and the MEC published a Government Gazette
expressing their intention to recognise him
as the headman for
Ndungunyeni. Chief Dumisani Gwadiso filed an objection against the
intended recognition. Upon receipt of the
objection, the Premier and
the MEC declined his recognition. The recognition process was then
referred to the Eastern Cape House
of Traditional Leaders (‘
The
House
”) for investigation. The
House found in favour of Mr Sithelo. The Premier and the MEC still
did not recognise him.
[13]
Unhappy
with the act of his non-recognition, Mr Sithelo launched an
application to compel the Premier and the MEC under case number
4159/2018. Mr Sithelo was successful in his application. The Khiwa
Royal Family and Chief Dumisani Gwadiso challenged the order
granted
in favour of Mr Sithelo. The order was subsequently rescinded. In
rescinding the court order, the court found that there
was a
non-joinder of interested parties. The recognition of Mr Sithelo was
accordingly terminated. He was removed as a headman
of Lower
Ndungunyeni. The sixth respondent, Mr Thozamile Sithelo, is the
acting headman of Lower Ndungunyeni, having been identified
by the
Khiwa Royal Family.
[14]
On
26 August 2020, the applicants launched another application under
case number 2779/2020. In that application, the following reliefs
were sought –
‘
1.
That
the first and second respondents’ refusal to consider and
decide the royal family’s resolution of the first applicant
in
culmination for the recognition of the second applicant in line with
the recommendations of the house of traditional leaders
dated 22
March 2017 to be the headman of Lower Ndungunyeni Administrative Area
in the district of Ngqeleni be reviewed and set
aside.
2.
That
upon the decision for the recognition by the first respondent in
paragraph 1
supra
the second respondent must process all the
administrative processes like publication in the Government Gazette
upon culmination
for payment, after the due process such payment be
effected within (30) thirty days.
3.
That
the second and fourth applicant (sic) be and are hereby interdicted
from interfering with the affairs of Sithelo Royal Family
specifically (sic) the process of royal family resolutions forthwith.
4.
That
the refusal by the first, second, third and fourth respondents to do
so be declared invalid, unlawful and without any legal
cause.
5.
That
the respondents pay costs of this application the one paying the
other to be absolved.’
[15]
On
17 August 2021, Jolwana J dismissed the applicants’ application
with costs. In dismissing the application, Jolwana J made
the
following remarks –
”
[25]
Some
of the problems are that the 90-day period referred to in section
5(1) of the PAJA would, if calculated 30 days after the 22
March
2017, end in July 2017. I interpose here to again make mention of the
fact that the applicants rely on the respondents’
failure to
implement the resolution of the Eastern Cape House of Traditional
Leaders and not TP29, the second respondent’s
letter dated 18
May 2018. I must emphasize that in his founding affidavit the second
applicant does not even mention that a decision
was ever taken to
recognise him and that he got paid as a headman of Lower Ndungunyeni.
It seems to me that if the applicant wanted
to rely on the letter
from the Eastern Cape House of Traditional Leaders (TP28) to advance
his cause of action in any way he wanted
to, he then needed to deal
with the fact that he only applied to this Court in these proceedings
in August 2020. He should have
dealt with that issue in the founding
affidavit.”
[16]
Jolwana
J concluded as follows –
“
[28]
As
I have said before, the applicants elected not to apply for an
extension of the 180-day period, or for the condonation of any
delay
even out of caution, if they believed that it was not necessary. They
have not done so. On the authority of
Opposition to Urban Tolling
Alliance
which was cited with approval by the Constitutional
Court in
ASLA Construction
, this Court has no jurisdiction to
even entertain the review application and therefore, this application
stands to be dismissed
on this ground alone. There cannot even be
considerations of what is in the interests of justice, absent the
issue being pleaded
and a condonation application being made as even
the interests of justice cannot be determined in a vacuum.”
[17]
On
7 June 2022, Mr Sithelo and the Sithelo Royal Family launched the
present proceedings seeking the following reliefs –
‘
1.
That
the first applicant is declared to be the only rightful and
legitimate
heir
which has been duly identified by the second
applicant to the position of Headman of Lower Ndungunyeni
Administrative Area in Ngqeleni.
2.
That
the decision of the second respondent to terminate the recognition of
the first applicant as the headman of Lower Ndungunyeni
Administrative Area in Ngqeleni through a letter dated 24 March 2020
is reviewed and set aside.
3.
The
first and second respondents are hereby ordered to within fifteen
(15) days of the granting of this order to terminate the unlawful
recognition of Thozamile Sithelo and to withdraw the certificate of
recognition issued to him in October 2020 unlawfully recognising
him
as the Acting Headman of Lower Ndungunyeni Administrative Area in
Ngqeleni on behalf of the fourth respondent and to immediately
cease
all monthly payments to him upon being served with this order.
4.
The
first and second respondents are hereby ordered to within ten (10)
days after the termination as ordered in 3 above, to reinstate
the
certificate of recognition issued to the first applicant on 15 May
2019 which recognises him as the rightful and legitimate
headman of
Lower Ndungunyeni Administrative Area, in Ngqeleni.
5.
The
first and second respondents are ordered to pay the first applicant
all outstanding emoluments calculated from the 15
th
June
2020 as occasioned by the unlawful termination of his headmanship on
the 24
th
March 2020.
6.
That the late filing of this application against the decision of the
first and second respondents
to terminate the headmanship of the
first applicant dated 24
th
March 2020 is hereby condoned.
7.
That
the 3
rd
, 4
th
, 5
th
and 6
th
respondents are ordered to refrain from meddling and interfering with
the 1
st
applicant in the execution and performance of his
duties as the Headman of Lower Ndungunyeni and are further restrained
from imposing
themselves in the affairs of the said Administrative
Area which is under the jurisdiction of the applicants.
8.
That
the costs of this application be paid by the 1
st
and 2
nd
respondents on the normal party and party scale the one paying the
other to be absolved from liability and such costs to include
costs
of two Counsel.
9.
That
the 3
rd
, 4
th
, 5
th
and 6
th
respondents pay costs on an attorney and client scale, the one paying
the other to be absolved from liability only if they oppose
this
application unsuccessfully.’
[18]
In
opposing the present application, Chief Gwadiso and the third
respondent had raised the special plea of
res
judicata
. They contend that when a
matter has been finally adjudicated upon, a litigant cannot ask the
court to rehear the same matter.
In this regard, Chief Gwadiso and
the third respondent had submitted that there is a final judgment
based on the merits of the
present application and that judgment was
delivered by Jolwana J on 17 August 2021. According to Chief Gwadiso
and the third respondent,
the judgment of Jolwana J was between the
same parties and in respect of the same relief which is sought by the
applicants. They
had submitted that in that judgment, Jolwana J had
upheld the defence of undue delay and dismissed the review
application. In addition
to their submission of
res
judicata
, Chief Gwadiso and the
third respondent submitted that the applicants have woefully failed
to meet the requirements for condonation
in respect of the late
launch of this review application and that too, the present
application should be dismissed. On the merits,
Chief Gwadiso and the
third respondent submitted that the applicants have failed to make
out a case and that there is a huge dispute
of fact regarding the
existence of the second applicant as a royal family. On this basis,
Chief Gwadiso contended that whatever
resolution that was made by the
second applicant regarding the identification of Mr Sithelo was
illegal. According to Chief Gwadiso,
there is no Sithelo Royal Family
and that the second applicant is a mere bogus royal family.
The
condonation
[19]
In
their notice of motion, the applicants are seeking for condonation in
respect of the late filing of the application against the
decision of
the Premier and the MEC regarding the termination of Mr Sithelo’s
recognition as a headman. The recognition of
Mr Sithelo was
terminated on 24 March 2020. In support of condonation, the
applicants attributed the delay to their previous attorney,
Mr
Mkhongozeli. In this regard, they allege that Mr Mkhongozeli was
careless and incompetent in his handling of their instructions.
They
had instructed Mr Mkhongozeli to institute the application timeously.
[20]
In
the founding affidavit, serious allegations of gross negligence,
incompetence and carelessness of a high degree are recurrently
levelled against Mr Mkhongozeli. In support of their allegations, the
applicants rely on the remarks of Jolwana J in the judgment
under
case number 2779/2020. For the sake of convenience, I deem it
appropriate to quote the relevant passage from the founding
affidavit
–
‘
Fortunately,
this unprofessional conduct has been laid bare in the judgment which
I have detailed above. His incompetence continued
to prejudice me in
that even after my last application was dismissed, I kept pushing him
to advise me on what he was planning to
do next. He kept advising me
that he would revert to the case he had withdrawn where he was given
a lifeline by Justice Mjali to
file a Supplementary Affidavit in that
case. I again deferred to his wisdom and waited on him to do what he
had advised to salvage
the case.’
[21]
The
judgment of Jolwana J was delivered on 17 August 2021. The present
proceedings were only instituted on 7 June 2022. There is
no detailed
account from the applicants regarding their own steps that they took
from 17 August 2021 until they launched this application.
The only
allegations made in the founding affidavit are that Mr Mkhongozeli
was incompetent and negligent. Mr Sithelo, in the founding
affidavit,
make the following further allegations –
‘
It
was only towards the end of April 2022 that another royal traditional
leader colleague of mine planted the idea of swapping attorneys.
He
went on to recommend a replacement attorney whose work I was already
familiar with as he is presently handling a case on behalf
of an
organisation of royal traditional leaders of which I am a member. I
then decided to approach this attorney to enquire on
whether he would
be available and willing to take over my case. I placed the call to
him on the 25
th
April and briefed him about my case and my
intention of procuring his services.’
[22]
It
is trite that a party seeking for condonation, is asking for an
indulgence of the court. In such circumstances, it has become
trite
that the court must exercise the discretion judicially on
consideration of the facts of each case and subject to the
requirement
that the applicant shows good cause for the default. In
United
Plant Hire (Pty) Ltd v Hill
[3]
the Supreme Court of Appeal found that in essence, it is a question
of fairness to both sides.
[23]
In
Pieter
Westerman Colyn v Tiger Foods Industries Ltd t/a Meadow Feed Mills
Cape
[4]
,
Jones
AJA held –
‘
The
authorities emphasize that it is unwise to give a precise meaning of
the term good cause. As Smallberger J put it in
HDS
Construction (Pty) Ltd v Wait
[5]
-
When
dealing with words such as “good cause” and “sufficient
cause” in other Rules and enactments the Appellate
Division has
refrained from attempting an exhaustive definition of their meaning
in order not to abridge or fetter in any way the
wide discretion
implied by these words (
Cairns’ Executors v Gaarn
1912 AD
181
at 186; Silber v Ozen Wholesalers (Pty)
1954 (2) SA 345
(A) at
352-3
). The Court’s discretion must be exercised after a
proper consideration of all the relevant circumstances.’
[24]
In
Van
Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae)
[6]
,
the
Constitutional Court held that an applicant for condonation must give
a full explanation for the delay which must not only cover
the entire
period of the delay but must also be reasonable. The factors
enumerated in the case are not individually decisive but
are
interrelated and must be weighed one against the other, thus a slight
delay and a good explanation may help to compensate for
prospects of
success which are not strong.
[25]
The
Supreme Court has warned against penalising a blameless litigant on
account of his attorneys’ negligence. In
Saloojee
and Another NNO v Minister of Community Development
[7]
it was held –
‘
To
hold otherwise might have a disastrous effect upon the observance of
the Rules of this Court. Considerations
ad misericordiam
should not be allowed to become an invitation to laxity… The
attorney, after all, is the representative whom the litigant
has
chosen for himself, and there is little reason why, in regard to
condonation of a failure to comply with a Rule of Court, the
litigant
should be absolved from the normal consequences of such a
relationship, no matter what the circumstances of the failure
are.’
[26]
In
my view, the
Saloojee
case had confirmed that there is a limit beyond which a litigant
cannot escape the result of his attorney’s lack of diligence.
The day has come for the litigant to take responsibility of the
choices he has made regarding his own legal representation. In
the
present case, whilst the applicants put blame to Mr Mkhongozeli, they
failed to give a detail account about their own actions
consequent to
the delivery of the judgment by Jolwana J on 17 August 2021. The
applicants give a flimsy excuse that they often
attended to Mr
Mkhongozeli’s office asking him about his next course of
action. They suggest that they waited until April
2022 when a
traditional leader of their royal family had suggested for the change
of the attorney. Again, there is paucity of information
regarding the
steps that were taken from April 2022 until 7 June 2022 when the
application was eventually launched. What is further
perplexing is
that the applicants suggest that they read the judgment by Jolwana J,
where their attorney was criticised. The applicants
rely on the
criticism against the attorney in the Jolwana J judgment. That
judgment was delivered in August 2017. There is no explanation
about
what the applicants did after reading the judgment, other than a
suggestion that they continued to approach the Mr Mkhongozeli’s
office. I find this explanation highly unconvincing and unreasonable.
It must be rejected.
[27]
In
Unitrans
Fuel and Chemical (Pty) Ltd v Dove-Co Carriers CC
[8]
the
court held that when dealing with an application for condonation, it
should require, among other things, that the entire period
of the
delay be thoroughly explained, regardless of the length of the delay.
[28]
I
agree with Ms
Msindo
,
counsel for the third to sixth respondents that the explanation given
by the applicants is inherently poor and it amounts to no
explanation.
[29]
Mr
Tyopo
,
counsel for the applicants, was unable to convince this Court on any
grounds upon which condonation can be granted. I also consider
that
the prospects of success in the review are extremely weak. First,
Jolwana J had dismissed the similar application after a
finding that
there was an undue delay. The effect of that finding was the finality
of the dispute between the parties. I reject
the submission by Mr
Tyopo
that the defence of undue delay was a mere technicality which did not
dispose the litigation between the parties. The fact of the
matter is
that Jolwana J had found that there was undue delay and
non-compliance with the provisions of PAJA. He correctly, in
my view,
relied on the authority of
Opposition
to Urban Tolling Alliance.
[30]
In
Buffalo
City Metropolitan Municipality v ASLA Construction (Pty) Ltd
[9]
it
was held –
”
The
standard to be applied in assessing delay under both PAJA and
legality is thus whether the delay was unreasonable. Moreover,
in
both assessments the proverbial clock starts running from the date
that the applicant became aware or reasonably ought to have
become
aware of the action taken. However, it is important to note that the
assessment is not same. A distinction between the assessments
of the
delay under PAJA versus the principle of legality turns on the
prescribed time period of 180 days. This distinction was
succinctly
described by the Supreme Court of Appeal in
Opposition to Urban
Tolling Alliance
, which found that section 7 creates a
presumption that a delay longer than 180 days is “
per se
unreasonable’:
“
At
common law application of the undue delay rule required a two-stage
enquiry. First, whether there was an unreasonable delay,
and second,
if so, whether the delay should in all the circumstances be condoned…
Up to a point, I think, s 7(1) of PAJA
requires the same two stage
approach. The difference lies, as I see it, in the legislature’s
determination of a delay exceeding
180 days as
per se
unreasonable. Before the effluxion of 180 days, the first enquiry in
applying s 7(1) is still whether the delay (if any) was unreasonable.
But after the 180-day period the issue of unreasonableness is
predetermined by the legislature; it is unreasonable per se. It
follows that the court is only empowered to entertain the review
application if the interests of justice dictate an extension in
terms
of s 9. Absent such extension the court has no authority to entertain
the review application at all. Whether or not the decision
was
unlawful no longer matters. The decision has been “validated”
by the delay.”
[31]
I
may as well mention that the applicants have not made out a case on
the merits. The existence of the Sithelo Royal Family is seriously
challenged and in light of the dispute of fact, the Court would not
be in a position to grant the relief that Mr Sithelo should
be
declared to be the only rightful and legitimate heir as headman of
Lower Ndungunyeni Administrative Area in Ngqeleni. The Act
requires
that a person must be identified by a royal family. There is a doubt
that the Sithelo Royal Family is legitimate. The
applicants did not
seek for the referral of the matter for oral evidence. The facts do
not justify the grant of such a relief.
[32]
The
other problem for the applicants is that during the hearing of the
review, Mr
Tyopo
had abandoned the relief that the recognition of Mr Thozamile Sithelo
be set aside. In my view, the court cannot grant a declaratory
without consequential relief. Mr Sithelo cannot be appointed whilst
there is a serving headman in the position. Until the appointment
of
Mr Thozamile Sithelo is set aside, the first applicant cannot be
headman for Lower Ndungunyeni Administrative Area. This is
another
reason why the application must fail. There were no facts placed
before Court to suggest that the interests of justice
permit for the
overlooking of the delay. The delay is excessively long. The
applicants have delayed by approximately 10 months
calculating from
17 August 2021 to 7 June 2022.
Res
judicata
[33]
In
his judgment, Jolwana J described the matter before him as follows –
‘
This
matter concerns the incumbency of the headmanship of Lower
Ndungunyeni Administrative Area (Lower Ndungunyeni) in the district
of Ngqeleni. Lower Ndungunyeni is part of and falls under
Amakhonjwayo Traditional Community which is under the Amakhonjwayo
Traditional
Council. The royal family of Amakhonjwayo Traditional
Council is the Khiwa Royal Family.’
[34]
There
can be no doubt that the issue that Jolwana J has to determine was
the incumbency of headmanship for Lower Ndungunyeni. The
dispute was
between the present applicants and the respondents. The relief sought
was substantially the same relief that the applicants
are seeking in
the present proceedings. I do consider the question of whether the
matter is
res judicata
or not.
[35]
When
dealing with the issue of
res
judicata -
[13]
“the
first question is to determine whether, as a matter of fact, the same
issue of fact or law which was determined by the
judgment of the
previous court is before another court for determination. This is so
because if the same issue (
eadem
quaestio)
was not determined by the earlier court, an essential requirement for
a plea of
res
judicata
in the form of issue estoppel is not met. There is then no scope for
upholding the plea. It does not, however, necessarily follow,
that
once the inquiry establishes that the same issue was determined, the
plea must be upheld. That is so because the court considering
the
plea of issue of estoppel is, in every case, concerned with a
relaxation of the requirements of
res
judicata
.
It must therefore, with reference to the facts of the case and
considerations of fairness and equity, decide whether in that case,
the defence should be upheld.
[10]
[36]
By
now, it is well settled that the requirements for the defence of
res
judicata
are that there must be (a)
a concluded litigation; (b) between the same parties; (c) in relation
to the same subject matter and
based on the same cause of action. Our
courts have insisted on three things that must be met, (i) prior
litigation culminating
in a final judgment; (ii) the judgment must
have final effect; (iii) and must be on the merits of the substantive
issue. In my
view, all these requirements have been met in this case
in that there was litigation between the parties and that litigation
culminated
in the judgment of Jolwana J and the judgment of Jolwana J
has a final effect. I accordingly agree with Ms
Msindo
that the litigation between the parties is
res
judicata
and that the defence has
been properly raised. I reject the submissions by Mr
Tyopo
to the contrary.
Costs
[37]
The
general rule is that costs should follow the results. The first and
second respondents did not oppose the application. Only
the third to
sixth respondents have successfully opposed the application. The
opposing respondents are entitled to their costs.
I have considered
to grant a punitive costs order for many reasons. First, the
applicants brought a serial number of court actions
against the
respondents. All those court actions were brought without proper
investigation. Gratuitous allegations have been made
without proper
facts. The applicants appear to be litigation enthusiasts who will
stop at nothing. The respondents are subjected
to never ending court
litigation on a matter that had clearly been resolved by the court.
However, Ms
Msindo
did not insist on a punitive costs order. Had she insisted, I would
have granted such order. Notwithstanding my remarks, I will
grant a
normal costs order in favour of the opposing respondents.
Conclusion
[38]
For
all the reasons set out above, the application must fail. The
applicants have not succeeded in the condonation application and
the
defence of
res judicata
is also upheld.
Order
[39]
In
the result, I make the following order –
(1)
The
application is dismissed.
(2)
The
first and second applicants are ordered to pay costs of the third to
sixth respondents jointly and severally, the one paying
the other to
be absolved.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT, EASTERN CAPE DIVISION
APPEARANCES
Counsel
for the Applicants
:
M Tyopo
c/o Sabela Lubando &
Associates
Mthatha
Counsel
for the Third to Sixth
Respondents
:
Adv Msindo
Attorneys
for the Third to Sixth
Respondents
:
V V Msindo &
Associates
Mthatha
[1]
Zuma
v Secretary of the Judicial Commission of Inquiry into Allegations
of State Capture, Corruption and Fraud in the Public Sector
Including Organs of State and Others
[2021]
ZACC 28
;
2021 (11) BCLR 1263
(CC) para 1
[2]
Penwill
v Penwill NO and Others
[2020]
ZACC 17
at para 1
[3]
United
Plant Hire (Pty) Ltd v Hill
,
1976 (1) SA 717
(A) at 720 E-G
[4]
Pieter
Westerman Colyn v Tiger Foods Industries Ltd t/a Meadow Feed Mills
Cape,
2003
(6) SA 1
(SCA)
[5]
HDS
Construction (Pty) Ltd v Wait
,
1979 (2) SA 298 (C)
[6]
Van
Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae)
[2007] ZACC 24
; ,
2008
(2) SA 472
(CC) at 477E
[7]
Saloojee
and Another NNO v Minister of Community Development
1965
(2) SA 135
(A) at 141C-E
[8]
Unitrans
Fuel and Chemical (Pty) Ltd v Dove-Co Carriers CC,
2010
(5) SA 340
(GSJ) at 344F-G and 345A-B
[9]
Buffalo
City Metropolitan Municipality v ASLA Construction (Pty) Ltd,
2019
(4) SA 331
(CC) at para 49
[10]
Democratic
Alliance v Brummer
(793/2021)
[2022] ZASCA 151
(3 November 2022)