CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 176/21
In the matter between:
MADIDIMALO KISLON MAMADI First Applicant
BABIRWA BAGA MAMADI ROYAL FAMILY Second Applicant
and
PREMIER OF LIMPOPO PROVINCE First Respondent
MEMBER OF THE EXECUTIVE COUNCIL FOR THE
DEPARMENT OF COOPERATIVE GOVERNANCE,
HUMAN SETTLEMENTS AND TRADITIONAL
AFFAIRS Second Respondent
LIMPOPO HOUSE OF TRADITIONAL LEADERS Third Respondent
COMMISSION ON TRADITIONAL LEADERSHIP
DISPUTES AND CLAIMS Fourth Respondent
ABOREKWE THOMAS MAMADI Fifth Respondent
BABIRWA BA MAMADI ROYAL COUNCIL Sixth Respondent
Neutral citation: Mamadi and Another v Premier of Limpopo Province and Others
[2022] ZACC 26
Coram: Zondo ACJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J,
Mhlantla J, Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ
Judgment: Theron J (unanimous)
2
Heard on: 10 March 2022
Decided on: 6 July 2022
Summary: Jurisdiction — Just administrative action — right of access to
courts
Rule 6(5)(g) — Rule 53 — res judicata
Plascon Evans rule — reasonably foreseeable disputes of fact
irresoluble on the papers — referral to oral evidence or trial
ORDER
On appeal from the High Court of South Africa, Limpopo Division, Polokwane:
1. Leave to appeal is granted.
2. The appeal is upheld and the order of the High Court is set aside.
3. The matter is remitted to the High Court for trial before a different Judge.
4. The applicants’ supplementary notice of motion is to stand as a simple
summons.
5. The applicants are directed to deliver their declaration 15 days following
the date of this Court’s order.
6. The rules as set out in the Uniform Rules of Court for the filing of further
pleadings will thereafter apply.
7. The costs incurred to date in the High Court, save in respect of the
application for leave to appeal, are to stand over for determination in the
trial proceedings.
8. The first, second, third, fifth and sixth respondents must pay the
applicants’ costs in the applications for leave to appeal in the High Court
and the Supreme Court of Appeal.
9. The first, second, third, fifth and sixth respondents must pay the
applicants’ costs in this Court.
3
JUDGMENT
THERON J (Zondo ACJ, Kollapen J, Madlanga J, Majiedt J , Mathopo J, Mhlantla J,
Mlambo AJ, Tshiqi J and Unterhalter AJ concurring):
Introduction
[1] This application has its genesis in a protracted dispute about the recognition of
the Kgoshi (Traditional Leader) of the Babirwa BaGa Mamadi traditional c ommunity
(Mamadi Community). Mr Madidimalo Kislon Mamadi (first applicant) and the
Mamadi Royal Family (second applicant) applied in the High Court of South Africa,
Limpopo Division, Polokwane (High Court) to review and set aside a decision of the
Premier of the Limpopo Province to recognise Mr Aborekwe Thomas Mamadi, the fifth
respondent, as acting Kgoshi of the Mamadi Community.1 They also applied to review
and set aside the recommendations of the Commission on Traditional Leaders hip
Disputes and Claims , which found that the first applicant did not have a claim to the
position of Kgoshi.
[2] The High Court dismissed the application with cost s.2 It is against this decision
that the applicants seek leave to appeal to this Court. The essential basis of the
High Court’s decision was this: the matter involves disputes of fact , irresoluble on the
papers;3 these disputes of fact were reasonably foreseeable and the application should
therefore have been brought as an action ,4 and, in a ny event, the applicants failed
1 Mamadi v Premier Limpopo Province [2020] ZALMPPHC 97.
2 Id at para s 55-6.
3 Id at para 10.
4 Id at para 54.
THERON J
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timeously to apply for a referral to oral evidence ;5 and no referral was warranted,
because oral evidence was unlikely to disturb the balance of probabilities in favour of
the applicants.6 Leave to appeal was refused by the Supreme Court of Appeal.
[3] The application raises a crisp question of procedure: where disputes of fact ,
irresoluble on the papers , arise in a review application, what approach shou ld a court
adopt? More specifically, how does rule 6(5)(g) of the Uniform Rules of Court – which
vests a court with a wide discretion in applications in which disputes of fact arise7 –
interact with rule 53, which regulates review proceedings?
Background
[4] The first applicant is Mr Madidimalo Kislon Mamadi and the second applicant
is identified as the Mamadi Royal Family. Whether the second applicant is entitled to
that appellation is in dispute. The fir st respondent is the Premier of the Limpopo
Province (Premier) and the second and third respondents, respectively, are the Member
of the Executive Council (MEC) for the Department of Cooperative Governance,
Human Settlement s and Traditional Affairs (Department), and the Limpopo House of
Traditional Leaders. I refer to the first, second and third respondents collectively as the
State respondents. The fourth respondent is the Commission o n Traditional Leadership
Disputes a nd Claims (Kgatla Commission) , which did not participate in these
proceedings. The fifth respondent is Mr Aborekwe Thomas Mamadi, who was
recognised as the acting Traditional Leader of the Mamadi Community by the Premier
on 20 September 2018 and the sixth respondent is the Babirwa Ba M amadi Royal
Council. I refer to the State respondents and the fifth and sixth respondents collectively
as the opposing respondents.
5 Id at para 48.
6 Id at para 53.
7 Lombaard v Droprop CC [2010] ZASCA 86; 2010 (5) SA 1 (SCA) at para 25.
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[5] The dispute revolves, in large measure, around competing accounts of the
genealogy of the Mamadi Community. I detail brie fly these opposing accounts for
purposes of con text. Madidimalo Kislon Mamadi (Madidimalo I), the former Kgoshi
of the Mamadi Community and namesake of the first applicant , and Ndiyeng, his
principal wife or masechaba, had two sons: Ramphefu , their eldest, and Maphula.8
Ramphefu had two sons: Ramotshabi, his eldest, and Mabetha. Ramotsh abi became
Kgoshi but then left the Community for the erstwhile Rhodesia.
[6] What then transpired is a matter of dispute. On the applicants’ version, Mabetha
was identified as “seed raiser” for Ramotshabi’s children. That is, he was to conceive
a child who would be Ramotshabi’s heir to the position of Kgoshi. The applicants aver,
however, that Mabetha died before the child was conceived and Masetha Frank
Mamadi, a grandson of Matshopo, Madidimalo I’s third wife, was thus nominated as
Ramotshabi’s “seed raiser ”. The applicants contend further that one Mabu Dorothy was
identified as the “candle wife” who, together with Masetha Frank Mamadi, was to
conceive Ramo tshabi’s heir. Eight children were born of thi s relationship including
Warick Molatelo Mamadi, the eldest, and , Madidimalo Kislon Mamadi , the first
applicant. The applicants contend that Warick Molatelo Mamadi ascended to the
position of Kgoshi but was displaced from this position by the incumbent government,
because he was a member of AZAPO .9 They say that Lucas Moraka Mamadi, the
brother of the fifth respondent, was then appointed as acting Kgoshi. The applicants
claim that Warick Molatelo Mamadi has since died, and that the first applicant, as
Masetha Frank Mamadi and Mabu Dorothy’s eldest surviving son, is the rightful
Kgoshi.
[7] The opposing respondents claim that Masetha Frank Mamadi was not identified
as Ramotsh abi’s “seed raiser” and that Mabu Dorothy was not identified as a
“candle wife”. They contend that after Ramotshabi, Mabetha became Kgoshi , and the
8 The Kgatla Commission report indicates that they had a third son, though this is immaterial for purposes of this
application.
9 The Azanian People's Organisation .
THERON J
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only male born of Mabetha’s marriage with his first wife died before he was eligible to
assume the position of Kgoshi. As a result, the first -born male of Mabetha’s marr iage
with his second wife, Joel Thokampe, became heir to the throne. He assumed the
position of Kgoshi, and had two sons: Lucas Moraka Mamadi and the fifth respondent .
After Joel Thokampe died, Lucas Moraka Mamadi became Kgoshi. The latter died in
2010, leaving a single minor daughter as his heir. As a result, the fifth respondent was
appointed as acting Kgoshi.
[8] Prior to that appointment, two commissions of inquiry were established to
provide recommendations on the disputed claims to the position of Kgoshi. The first
was established in 1 997 at the instance of Premier Ngoako Ramahlodi (Ralushayi
Commission). In its report delivered in 2004, the Ralushayi Commission did not reach
a definitive conclusion. This was primarily because Lucas Moraka Mamadi had refused
to give evidence before that Commission, and it was consequently unable to adequately
test the competing genealogies. It therefore recommended that th e erstwhile
Department of Provincial and Local Govern ment not entangle itself in the dispute, and
the Premier “either shelve the matter for future official investigation o r refer the matter
back to the [R]oyal [C] ouncil of Babirwa [B]a[G]a Mamadi for reconsideration” . By
the time of the delivery of this report Warick Molatelo Mamadi had died.
[9] On 19 August 2009, the Office of the Premier identified Mr Lucas Moraka
Mamadi as Kgoshi of the Mamadi Community.
[10] The first applicant subsequently referred a recognition claim to the
Kgatla Commission. The Commission notified the first applicant by letter that it would
investigate and make recommendations regarding his claim to the position of Kgoshi
and undertook to finalise the inquiry before the expiry of its term of office in
December 2015.
[11] In June 2017, the K gatla Commission delivered its report. It rejected the first
applicant’s account of the Mamadi Community’s genealogy. It noted, in addition, that
THERON J
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the first applicant was not a credible witness, that his evidence was “characterised by
flaws”, and that the genealogy he had presented was “very shallow, wanting and
misleading compared to the [evidence] submitted by the [fifth respondent], which [was]
comprehensive and elaborate”. It recommend ed that the first applicant’s claim for the
restoration of the Mamadi senior traditional leadership title be declined.
[12] The first applicant alleges that on 17 November 2017 , the Mamadi Royal Family
resolved to appoint him as Kgoshi, and addressed a request to the Premier, the MEC for
the Department , and the Limpopo De partment of Traditional Affairs , that he be
recognised as such. The purported resolution of the Mamadi Royal Family was
subsequently amended in 2018 to request, amongst others, that the first applicant be
appointed as acting Kgoshi of the Mamadi Community . On 1 June 2018, the Premier
rejected this request by letter , on the basis that the Kgatla Commission had previously
rejected the first applicant’s claim. The Premier’s letter referred only to the request that
the first applicant be recognised as Kgoshi. However, the applicants contended that this
letter also constituted a rejection of the request that the first applicant be appointed as
acting Kgoshi, and this understanding was not disputed by the State respondents in the
High Court. On 20 September 2 018, the Premier recognised the fifth respondent as
acting Kgoshi of the Mamadi Community.
[13] On 4 July 2018, the applicants instituted a review application in the High Court
in terms of the Promotion of Administrative Justice Act 10 (PAJA) which has culminated
in the present appeal . The ma tter was ultimately heard on 15 October 2020. The
applicants advanced a sweeping set of grounds of review, which I do not set out in full.
In essence, the case advanced was this: the Kgatla Commission’s report was irrational,
unlawful and was fashioned in a procedurally unfair manner. The nub of the rationality
challenge appears to have been that the Kgatla Commission allegedly failed to take into
account various submissions, which the applicants contend were rele vant. This was
said to include submissions on relevant customary law, which the Kgatla Commission
10 3 of 2000.
THERON J
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was obliged to consider an d apply in terms of section 25(4 )(a) of the Traditional
Leadership and Governance Framework Act11 (Traditional Leadership Act).
[14] The procedural unfairness was said to lie, amongst others, in the fact that the first
applicant was not afforded a proper opportunity to challenge evidence and that the first
applicant and his witnesses were treated in a biased manner. As to lawfulness, t he
applicants contended that the Kgatla Commission acted ultra vires section 25(4)(b) of
the Traditional Leadership Act, by making recommendations more than five years after
it was appointed . They contended further that the Kgatla Commission report was
unlawfully implemented in breach of section 30 of the Limpopo Traditional Leadership
and Institution Act12 (Limpopo Act). That provision requires that the recommendations
of a commission must be referred to the Provincial House of Traditional Leaders for
advice before implementation. No such referral was made.
[15] In respect of the Premier’s decision not to recognise the first applicant as acting
Kgoshi, the essence of the challenge was that the Premier a cted ultra vires section 15 of
the Limpopo Act, by refusi ng to recognise the first applicant as acting Kgoshi in the
face of a valid resolution of the Mamadi Royal Family identifying him as such. As for
the Premier’s recognition of the fifth respondent as acting Kgoshi, the applicants
contended that the Premier had recognised him as such without a resolution of the
Mamadi Royal Family, and thus in breach of section 15 of the Limpopo Act.
[16] The State respondents contended in answer that the applicants lacked
locus standi to bring the application. They alleged that the group of individuals cited
as the second applicant included the first applicant’s children and had been “put together
to parade as the Royal Family in order to satisfy the requirements of the [Limpopo
Act]”. On the merits, the State respondents and fifth respondent 13 collectively
contended that the Kgatla Commission had examined and correctly applied relevant
11 41 of 2003.
12 6 of 2005.
13 No affidavit was delivered on behalf of the sixth respondent in the High Court.
THERON J
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customary law, and that the first applicant had no entitlement t o cross -examine
witnesses before the Kgatla Commission. The Premier, they s aid, was not obliged by
section 15 of the Limpopo Act to recognise a person as an acting Kgoshi when presented
with a resolution which had been prepared by a group of individuals merely purporting
to be the Royal Family. They contended furthe r that, in appointing the fifth respondent
as acting Kgoshi, the Premier had in fact acted on a written resolution taken by the
legitimate Mamadi Royal Family on 5 March 2018. Finally, the fifth respondent
contended that the applicants were time-barred from reviewing the Kgatla Commission
report, and that the Premier’s communication of 1 June 2018, in which he notified the
first applicant that his claim for recognition had been rejected, was not a reviewable
decision.
High Court
[17] During oral argument on 15 October 2020 , the High Court noted that there were
numerous disputes of fact – pertaining both to the merits and the issue of locus standi –
that could not be resolved on the papers. The applicants filed supplementary written
submissions on the appropriate remedy in which they submitted that since they were
required to bring the application on motion in terms of rule 53, the appropriate course
was to refer the matter for the hearing of oral evidence. The State respondents and fifth
respondent contended that the application should be dismissed, because the applicants
were not obliged to bring the review on motion, disputes of fact were reasonably
foreseeable, and the referral of the matter to oral evidenc e as sought by the applicants
was opportunistic and incorrect in law.
[18] On 26 November 2020, the High Court dismissed the application with costs. The
essential basis for this decision, as I have mentioned, was that the matter entailed
disputes of fact irresoluble on the papers bo th as to locus standi and the merits. The
High Court held that rule 53 is not peremptory and, as a result, where disputes of fact
irresoluble on the papers are reasonably foreseeable, a litigant must bring a review by
way of action. The High Court further held that the applicants had impermissibly sought
a referral to oral evidence after the merits had been argued, and in order to bolster a
THERON J
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floundering case and that referral was inappropriate because the balance of probabilities
would not be tilted in favour of the applicants if referral to oral evidence was permitted.
Condonation
[19] Condonation for the late delivery of all relevant documents is granted . The State
respondents erroneously served their opposing papers on the applicants’ previous
attorneys. However, the applicants have not contended that these papers were not drawn
to their attention and, in any event, these papers had, at the time of the hearing, been
available on this Court’s website for at least a month. I am therefore satisfied tha t the
applicants will suffer no prejudice through the admission of the State respondents ’
papers and these papers are accordingly admitted.
Jurisdiction and leave
[20] This application raises a discrete question of law: how does rule 6(5)(g) operate
in the context of a review application brought in terms of rule 53? The application thus
does not turn, as the opposing respondents suggest, merely on whether the High Court
properly applied rule 6(5)(g). Instead, it raises the question whether the High Court
correctly construed the rule. That question bears directly on the procedure available to
litigants seeking to vindicate their rights to just administrative action in terms of
section 33 of the Constitution . It also bears on the circumst ances in which a c ourt can
refuse to render a final decision in a matter and thus on the right in terms of section 34
of the Constitution to have “any dispute that can be resolved by the application of law
decided in a fair public hearing before a court ”. Our jurisdiction is therefore engaged.
[21] Whether we should grant leave depends on what the interests of justice require .
At the hearing, it was vigorously argued by counsel for the State respondents that the
High Court’s decision did not render the dispute res judicata.14 Were that so, it would
provide an important consideration against granting leave because the High Court’s
14 A matter that has been adjudicated by a competent court and therefore may not be pursued further by the same
parties.
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decision would be without final effect. 15 That said, it would not provide a co nclusive
reason to refuse leave because, in this Court, even de cisions with out final effect are
appealable if the interests of justice so require. 16
[22] A dismissal in terms of rule 6(5)(g) does not preclude a litigant from proceeding
by way of action, and thus does not finally dispose of a matter. 17 The difficulty, in this
case, is that the precise basis for the High Court’s dismissal is unclear. At various parts
of its judgment, the High Court appeared to indicate that it had not simply dismissed
the matter in terms of rule 6(5)(g), but that it had applied Plascon-Evans18 to determine
the merits. To this end, after holding that “the request to refer the matter to oral evidence
is refused”, it went on to hold that “[o]n the merits of the application, I am of the view
that the applicants have not mad e out a case for the relief they seek”.
[23] However, despite this, I do not understand the High Court to have determined
the merits. It explained, in various parts of the judgment, that the dispute of fact w as
such that the application could not be decided on affidavit. And where it engaged the
merits of the application, I understand it to have done so for the limited purpose of
determining whether a referral to oral evidence was warranted. The High Court’s
conclusion that the applicants failed to make out a case for the relief sought meant only
that the applicants had failed to make out a case for a referral to oral evidence. As a
result, the High Court’s decision did not render the dispute res judicata.
15 International Trade Administration Commission v SCAW South Africa (Pty) Ltd [2010] ZACC 6; 2012 (4) SA
618 (CC); 2010 (5) BCLR 457 (CC) at para 49.
16 Khumalo v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC) at para 8.
17 Lombaard above n 7 at para 26.
18 In Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZA SCA 51; 1984 (3) SA 623 (A)
at 634H-I, the Appellate Division held that:
“[W]here in proceedings on notice of motion disputes of fact have arisen on the affidavits, a
final order, whether it be an interdict or some other form of relief, may be granted if those facts
averred in the applicant ’s affidavits which have been admitted by the respo ndent, together with
the facts alleged by the respondent, justify such an order .”
This dictum is referred to as the Plascon -Evans dictum or rule.
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[24] There are, nonetheless, compelling considerations of justice which suggest that
we should grant leave. First, the effect of the High Court’s decision is to establish a
precedent of substantial import: where disputes of fact , irresoluble on the papers , are
reasonably foreseeable, a litigant is required to forego the advantages of rule 53, and
bring a review as an action. Second, as I have explained, dismissals in terms of
rule 6(5)(g) are without final effect. Were we to refuse l eave on the basis that the
High Court’s decision in this matter did not render the dispute res judicata, we would
be foreclosing the possibility of this Court ever considering whether and in what
circumstances a court is entitled to exercise its rule 6(5)(g) discretion to dismiss a
rule 53 review. Given the broad import of this iss ue, and its bearing on sections 33 and
34 of the Constitution, I cannot accept that this is what the interests of justice require.
Third, if the High Court misconceived its discretionary powers in terms of rule 6(5)(g)
and we were to refuse leave, we would be forcing the applicants to institute proceedings
afresh on the basis of the High Court’s mistake of law. This would be contrary to the
interests of justice. Finally, for reasons set out later, I am of the view that the application
has prospects of success . Leave to appeal is thus granted.
[25] It is necessary to note that leave must be refused in respect of two aspects of the
applicants’ case. First, the applicants contended, in this Court, that the Premier failed
to comply with section 12 of the Limpopo Act in refusing to appo int the first applicant
as Traditional Leader. However, in the High Court, the applicants’ challenge concerned
the first applicant’s non -appointment as acting Traditional L eader, rather than his
non-appointment as Traditional Leader. I n relying on section 12 in this Court, the
applicants therefore attempted to enlarge the scope of their challenge. This is
impermissible, and leave must therefore be refused in respect of the applicants’
section 12 challenge. Second, the applicants sought to appeal the High Court’s decision
to admit various of the opposing respondents ’ affidavits, which the applicants
contended did not comply with the provisions of the Regulations Governing t he
Administering of an Oath or Affirmation. 19 The High Court’s exercise of its discretion
19 GN R1258 GG 3619, 21 July 1972.
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to overlook the irregularities in those affidavits does not engage this Court’s
constitutional or extended jurisdiction. Though there might be circumstances where th e
improper admission of an affidavit vitiates the fairness of proceedings, and thus raise s
a constitutional issue, this is not such a case. Leave must therefore be refused in respect
of this issue.
Rule 53
[26] Rule 53 provides, in relevant part , that:
“(1) Save where any law otherwise provides, all proceedings to bring under review the
decision or proceedings of any inferior court and of any tribunal, board or officer
performing judicial, quasi-judicial or administrative functions shall be by way of notice
of motion directed and delivered by the party seeking to review such decision or
proceedings to the magistrate, presiding officer or chairperson of the court, tribunal or
board or to the officer, as the case may be, and to all other parties affected—
(a) calling upon such persons to show cause why such decision or proceedings
should not be reviewed and corrected or set aside, and
(b) calling upon the magistrate, presiding officer, chairperson or officer, as the
case may be, to despatch, within fifteen days a fter receipt of the notice of
motion, to the registrar the record of such proceedings sought to be corrected
or set aside, together with such reasons as he or she is by law required or desires
to give or make, and to notify the applicant that he or she has done so.
. . .
(4) The applicant may within ten days after the registrar has made the record
available to him or her, by delivery of a notice and accompanying affidavit, amend, add
to or vary the terms of his or her notice of motion and supplement the s upporting
affidavit.” (Emphasis added.)
[27] Despite its peremptory language, it has long been settled that litigants are not
obliged to bring review proceedings in terms of rule 53. In Jockey Club ,20 the
Appellate Division explained the two-fold purpose of the rule. It provides a “procedural
20 Jockey Club of South Africa v F orbes [1992] ZASCA 237; 1993 (1) SA 649 (A) .
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means whereby persons affe cted by administrative or quasi -judicial orders or decisions
[can] get the relevant evidential materi al before t he Supreme Court” .21 In addition, it
means that litigants do not have to launch review proceedings in the dark, and then incur
the expense of applying to amend their papers. 22 Instead, they can, as a matter of right,
amend their founding papers after delivery of the rule 53 record. 23
[28] Regarding the purpose of the rule, the Appellate Division concluded that:
“The primary purpose of the Rule is to facilitate and regulate applications for review.
On the face of it the Rule was designed to aid an applicant, not to shackle him. Nor
could it have been intended that an applicant for review should be obliged, irrespective
of the circumstances and whether or not there was any need to invoke the facilitative
procedure of the rule, slavishly – and pointlessly – to adhere to its provisions. After
all:
‘[R]ules are not an end in themselves to b e observed for their own sake. They are
provided to secure the inexpensive and expeditious completion of litigation before the
courts.’”24
[29] In short, Jockey Club held that the rule is designed to confer advantages on
litigants seeking to review administrative action. Litigants are however entitled to
forego these procedural advantages.25
[30] It should be noted that at issue in Jockey Club was whether a litigant was entitled
to bring re view proceedings on motion in terms of rule 6, rather than rule 53. It
therefore did not definitively decide whether review proceedings could be brought by
way of summons. There is, however, no cogent reason why the Jockey Club dictum
should be understoo d to mean that a litigant can only employ rule 6 instead of rule 53.
Where, for instance, a litigant is in possession of the record of the relevant decision,
21 Id at 661H-J citing with approval S v Baleka 1986 (1) SA 361 (T) at paras 397-8.
22 Id at 660D-H.
23 Id.
24 Id at 661E-H.
25 Adfin (Pty) Ltd v Durable Engineering Works (Pty) Ltd 1991 (2) SA 366 (C) at 368H-G.
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foresees that the disputes of fact are such that they can only be resolved in trial
proceedings, and is willing to proceed by the lengthier process of trial, it would be undue
formalism to require that proceedings be brought on motion and that a request must then
be made to refer proceedings to oral evidence or trial.26
[31] For this reason, I also do not understand rule 2 of the Administrative Review
rules (PAJA Rules) to preclude a litigant from instituting review proceedings by way of
action. That rule is framed in peremptory language and provides, in relevant part, that:
“[a]n application for judicial review in terms of the Act that is instituted in the
High Court, in circumstances where no record or only part of the record has been
furnished, shall be brought in terms of rule 6 or 53 of the High Court rules, at the
election of the applicant, as the case may be.”27
As with rule 53, the peremptory language of this rule should be understood against its
purpose.28
[32] Administrative decisions, until set aside by a court, exist in fact and have legal
consequences.29 There is, accordingly, a need to have recours e to a procedure that may
expeditiously set aside unlawful administrative action. Trial proceedings are in general
lengthier than application proceedings and, as a result, are in general unsuitable for the
expeditious adjudication of review proceedings. The PAJA Rules confer an entitlement
on litigants to institute review proceedings by way of rule 6 or rule 53 of the Uniform
Rules of Court , so that their section 33 rights are expeditiously vindicated if the
26 See for example Nelson Mandela Bay Metro v Erastyle 2019 (3) SA 559 (Erastyle ), in which the High Court
adopted this line of reasoning. Notably, however, and presumably because of the procedural advantages which
rule 53 bestows, counsel for the opposing respondents were unable to point this Court in the direction of a decision
in which a review had been brought by way of action. Erastyle is one notable exception.
27 Emphasis added.
28 University of Johannesburg v Auckland Park Theological Seminary [2021] ZACC 13; 2021 (6) SA 1 (CC);
2021 (8) BCLR 807 (CC) at para 65; Chisuse v Director -General, Department of Home Affairs [2020] ZACC 20;
2020 (6) SA 14 (CC); 2020 (10) BCLR 1173 (CC) at para 52; Capitec Bank Holdings Ltd v Coral Lagoon
Investments 194 (Pty) L td [2021] ZASCA 99; 2022 (1) SA 100 (SCA) at para 25; and Natal Joint Municipal
Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) at para 18.
29 Oudekraal Estates (Pty) Ltd v City of Cape Town [2004] ZASCA 48; 2004 (6) SA 222 (SCA) at para 26.
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administrative decision is shown to be unlawful. But it does not follow that litigants
cannot forego this entitlement.
[33] The High Court’s conclusion that rule 53 is not peremptory, and that review
proceedings can be brought by way of action proceedings, is therefore correct . This
much was correctly conceded, in oral argument before this Court, by counsel for the
applicants. This, however, provides no support for the High Court’s crucial further
finding that because a litigant can bring review proceedings by way of summons, where
disputes of fact , irresoluble on the papers, are reasonably foreseeable, she must do so.
[34] The applicants contended that this finding impermissibly requires litigants, in
circumstances where disputes of f act are reasonably foreseeable, to forego the
advantages of the rule 53 record. The opposing respondents offered two answers to this
contention. First, they conte nded that in trial proceedings, all relevant documents can
be obtained by way of discovery. Se cond, that section 173 of the Constitution – which
vests the courts with the power to regulate their own process – enables litigants in action
proceedings to obtain the documents that would otherwise be obtained under rule 53.
[35] The short answer to the opposing respondents’ first contention is this: the process
under rule 53 is different from that under rule 35. Rule 53 provides access to a far
greater ambit of documents than normal discovery under rule 35. A s this Court
explained in Helen Suzman Foundation :
“[T]he rule 53 process differs from normal discovery under rule 35 of the Uniform
Rules of Court. Under rule 35 documents are discoverable if relevant, and relevance
is determined with reference to the pleadings. So, under the rule 35 discovery process,
asking for information not relevant to the pleaded case would be a fishing expedition.
Rule 53 reviews are different. The rule envisages the grounds of review changing later.
So, relevance is assessed as it relates to the decision sought to be reviewed, not the case
pleaded in the founding affidavit.”30
30 Helen Suzman Foundation v Judicial Service Commission [2018] ZACC 8; 2018 (4) SA 1 (CC); 2018 (7) BCLR
763 (CC) at para 26.
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[36] The rule 53 record contains “all information relevant to the impugned decision
or proceedings” 31 which includes “every scrap of paper throwing light, however
indirectly, on what the proceedin gs were”32 and the record of the deliberations of the
relevant decision maker. 33 The fundamental importance of the rule 53 record was
explained by this Court in Turnbull -Jackson :
“Undeniably, a rule 53 record is an invaluable tool in the review process. It may help:
shed light on what happened and why; give the lie to unfounded ex post facto (after the
fact) justification of the decision under review; in the substantiation of as yet not fully
substantiated grounds of review; in giving support to the decision-maker’s stance; and
in the performance of the reviewing court’s function.”34
[37] It is therefore no answer that a litigant will not be disadvantaged if she is required
to institute review proceedings by way of summons because sh e can call for discovery
in terms of rule 35.
[38] The contention that section 173 could be employed to obtain access to all
relevant documents is likewise u npersuasive. That section has never been employed in
trial proceedings, in effect, to obtain the rule 53 record. Whether it can be so employed
was not adjudicated by the High Court, and I thus consider it unnecessary and imprudent
for this Court to render any finding on this issue. It suffice s to say that rule 53 provides
the prevailing mechanism with which litigants can access all documents and reasons
relevant to the impugned administrative decision.
[39] The applicants are accordingly correct that if, as the High Court held, litigants
are in certain circumstances required to bring review proceedings by way of summons,
31 Id at para 17.
32 Johannesburg City Council v The Administrator Transvaal (1) 1970 (2) SA 89 (T) at 91H.
33 Helen Suz man Foundation above n 30 at para 24.
34 Turnbull -Jackson v Hibiscus Court Municipality [2014] ZACC 24; 2014 (6) SA 592 (CC); 2014 (11) BCLR
1310 (CC) at para 37.
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18
they will be for ced to forego the advantages of rule 53. The advantages to an applicant
are that once the record and the reasons are obtained, the applicant may supplement
their founding affidavit, and the respondent is in a position to file a comprehensive
answer. The issues are defined and the evidence marshalled on the basis of an informed
understanding of the administrative action and the reasons underpinning it. It may be
possible to replicate these advantages in a trial action, b ut the procedural route to
achieve this has not been determined . But even if it were possible, there seems to be no
compelling reason to require a litigant to forego the utility of rule 53, even if a dispute
of fact is reasonably anticipated. Recourse to rule 53 will not be in vain. What may
need to be referred to evidence or trial will become clear. To insist on the institution of
a trial action may very well prove cumbersome and time -wasting. That is
constitutionally unacceptable. The rule 53 record both gives effect to the section 34
right of access to courts, and enables a court to properly perform its constitutional
review function. As the Supreme Court of Appeal held in Democratic Alliance :
“Without the record a court cannot perform its constit utionally entrenched review
function, with the result that a litigant’s right in terms of section 34 of the Constitution
to have a justiciable dispute decided in a fair public hearing before a court with all the
issues being ventilated, would be infringed.”35
[40] There is no reason why, in a matter where disputes of fact irresoluble on the
papers are reasonabl y foreseeable, a litigant should be forced to forego the benefit of
rule 53. It follows that the High Court erred in holdi ng that, where disputes of fact are
reasonably foreseeable, review proceedings must be brought by way of action .
How does rule 6(5)(g) interact with rule 53?
[41] The remaining question is whether, in review proceedings brought in terms of
rule 53, and after the applicant has obtained the record, a court may in terms of its
35 Democratic Alliance v Acting National Director of Public Prosecutions [2012] ZASCA 15; 2012 (3) SA 486
(SCA) at para 37 cited with approval in Helen Suzman Foundation above n 30 at paras 14-5.
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19
discretion under rule (6)(5)(g), on the basis that the matter cannot be decided on
affidavit, dismiss the matter without rendering a final decision. Rule 6(5)(g) provides:
“Where an application cannot properly be decided on affidavit the court may dismiss
the application or make such order as it deems fit with a view to ensuring a just and
expeditious decision. In particular, but without affecting the generality of the
aforegoing, it may direct that oral evidence be heard on specified issues with a view to
resolving any dispute of fact and to that end may order any deponent to appear
personally or grant leave for such deponent or any other person to be subpoenaed to
appear and be examined and cross-examined as a witness or it may refer the matter to
trial with appropriate directions as to pleadings or definition of issues, or otherwise”.
[42] The purpose of the c ourt’s discretion under this rule to dismiss an application is
to discourage a litigant from using motion proceedings when the court will not be able
to decide the dispute on the papers. This is a waste of scarce judicial resources and
prejudicial to the respondent. An applicant should not be able to use motion
proceedings when the worst outcome is confined to a referral to oral evidence or trial.
Rule 6(5)(g) thus vests a power in courts, where motion proceedings have been
inappropriately used in this way, to penalise a litigant through dismissal without
rendering a final decision. In short, therefore, a dismissal in terms of rule 6(5)(g) serves
to punish litigants for the improper use of motion proceedings .
[43] Does a litigant who brings a review in terms of rule 53, and thus on motion,
where disputes of fact are reasonably foreseeable, act in an imp ermissible way? Quite
plainly not. Litigants are constitutionally entitled to make use of rule 53 in review
proceedings, in order to properly give effect to their section 34 rights. 36 It therefore
cannot be that a litigant can be penalised through the use of rule 6(5)(g), merely because
rule 53 was utilised. It follows that a court does not have a discretion under rule 6(5)(g)
to dismiss an application brought in terms of rule 53 on the basis that reasonably
anticipated disputes of fact arise on the papers. This is neither just – because it penalises
a litigant for making use of the procedural advantages of rule 53 – nor does it facilitate
36 Id.
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20
an expeditious and inexpensive resolution of the dispute, because it forces a l itigant to
begin proceedings afresh by way of action.
[44] This does not mean that an applicant in a rule 53 application is entitled, as of
right, to have a matter referred to oral evidence or trial. General principles governing
the referral of a matter to or al evidence or trial remain applicable. L itigants should, as
a general rule, apply for a referral to oral evidence or trial, where warranted, as soon as
the affidavits have been exchanged .37 Where timeous application is not made , courts
are, in general , e ntitled to proceed on the basis that the applicant has accepted that
factual disputes will be resolved by application of Plascon-Evans. Likewise, where an
applicant relies on Plascon-Evans, but fails to convince a c ourt that its application can
prevail by application of the rule, a court might justifiably refuse a belated application
for referral to oral evidence. A court should however proceed in a rule 53 application
with caution. An applicant might institute proceedings in good faith in terms of rule 53,
in order to secure the advantages of the rule and on the basis that the application can
properly be decided by application of Plascon-Evans, only for the respondent to later
show that this is not so. In these circumstances, provided the dispute of fact w hich
emerges is genuine and far -reaching and the probabilities are sufficiently evenly
balanced, referral to oral evidence or trial, as the case may be, will generally be
appropriate.
[45] It bears emphasis, however, that litigants cannot permissibly apply for referral to
oral evidence or trial “where the affidavits themselves, even if accepted, do not make
out a clear case, but leave the case ambiguous, uncertain or fail to make out a cause of
action.”38 In that event , the application should of course fail without recourse to
Plascon-Evans or oral evidence. But where a case is properly made out, the disputes of
fact are genuine, far-reaching and fundamental and cannot be resolved by application
of Plascon-Evans, the proper course in rule 53 proceedings is, in general, referral to oral
37 Law Society, Northern Provinces v Magami [2009] ZASCA 107; 2010 (1) SA 186 (SCA) at 195C -D.
38 Carr v Uzent 1948 (4) SA 383 (W) at 390.
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21
evidence or trial. Dismissal without rendering a decision in these circumstances is
inappropriate. Both rule 53 and the PAJA Rules render review by way of motion the
default position. Determining a review application without making a final decision
frustrates the purpose of expeditiously addressing unlawful administrative action. Put
differently, where a review application is dismissed wit hout rendering a final decision –
so as to com pel a litigant to proceed by way of action – this purpose is frustrated.
Appropriate remedy and conclusion
[46] In dismissing the application, the High Court was moved by a mistake of law,
and we are therefore entitled to interfere with its wide discretion und er rule 6(5)(g).39
That Court made two further fundamental errors, which permit our interference, and
which are also relevant to the question of remedy. First, it relied, in part, on the
recommendations of the Kgatla Commission to conclude that the balanc e of
probabilities would not be disturbed in the applicants’ favour by referral to oral
evidence, and th at such referral was therefore inappropriate. This reliance was
impermissible. The Kgatla Commission’s recommendations were challenged by the
applicants and could not therefore be accepted as true in order to refuse referral to oral
evidence.
[47] Second, two of the bases upon which the applicants sought to challenge the
impugned decisions were not seriously disputed in the High Court. In particular, it was
not disputed that the Kgatla Commission delivered its r ecommendations outside of the
five year time period prescribed by section 25(4)(b) of the Traditional Leadership Act.
Nor was it disputed that the P remier did not refer the Kgatla Commission’s
recommendations to the Provincial House of Traditional Leaders for advice on their
implementation. In this Court, the opposing respondents trenchantly submitted that, in
fact, the Kgatla Commission had not been appointed in 2011 as alleged by the
applicants, and therefore had timeously delivered its recommendations. And, they
submitted further, even if the recommendations were delivered outside the allotted time
39 Ferris v FirstRand Bank Ltd [2013] ZACC 46 (CC); 2014 (3) SA 39 (CC); 2014 (3) BCLR 321 (CC) at para 28.
THERON J
22
period, this would not require that those findings be set aside. In respect of the Premier’s
failure to refer the Kgatla Commission’s recommendations to the Provincial House of
Traditional Leader s, the State respondents submitted that no referral is required where
a commission merely refuses to recognise a claim to a position of traditional leade rship.
[48] Whatever the merit in the opposing respondents’ submissions, in refusing
referral on the basis that the applicants’ case was hopeless, without first assessing these
undisputed grounds of review, the High Court committed a fundamental error. The
High Court could have adopted the view that it wo uld be preferable to refer the matter
to trial, or to refuse to adjudicate any of the grounds of review before the hearing of oral
evidence, and that it was undesirable to decide certain of the grounds of revi ew in a
piecemeal fashion. What it could not do, however, was refuse referral on the basis that
oral evidence would not tip the balance in favour of the applicants, without first
assessing each of their grounds of review, and especially those grounds of r eview that
were undisputed.
[49] As indicated, t he High Court rendered no decision on the merits. Were we to
engage the applicants’ various grounds of review, we would therefore do so as a court
of first and last instance. That would not be appropriate. The re are, furthermore,
widespread and fundamental disputes of fact, which plainly cannot be adjudicated on
the papers, and which are insufficiently narrow in scope to be referred to oral evidence.40
Without being exhaustive, these include: the authenticity a nd validity of the various
resolutions submitted to the Premier for purposes of recognising an acting Kgoshi; the
competing claims as to the genealogy of the Mamadi Community; the competing claims
as to whether the Kgatla Commission applied appropriate cus tomary law in rendering
its recommendations; and the da te of appointment of the Kgatla Commission.
40 Pressma Services (Pty) Ltd v Schuttler 1990 (2) SA 411 (C) at 419E-G.
THERON J
23
[50] The appropriate order is therefore that the matter be referred to trial. Given the
adverse remarks the High Court made about the merits of the applicants’ case, the trial
proceedings should be heard by a different J udge.
[51] The applicants’ supplementary notice of motion will stand as a simple summons.
Given the voluminous set of affidavits filed in this application, it will be facilitative of
an orderly resolution of this dispute that the parties are directed to file pleadings, rather
than that the affidavits be permitted to stand as such pleadings. Accordi ngly, 15 days
after this Court’s order, the applicants are to deliver a declaration, after which the
ordinary rules for the filing of pleadings will apply.
Costs
[52] The applicants have been successful in this appeal, and costs in this Court must
therefore fo llow the result. Since the applications for leave to appeal to the High Court
and Supreme Court of Appeal were nec essitated by the High Court’s erroneous
decision, the applicants are entitled to their costs in those a pplications. Costs in the
High Court, save in respect of the application for leave to appeal in that Court, are to
stand over for determination in the remitted trial proceedings.
Order
[53] The following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld and the order of the High Court is set aside.
3. The matter is remitted to the High Court for trial before a different Judge.
4. The applicants’ supplementary notice of motion i s to stand as a simple
summons.
5. The applicants are directed to deliver their declaration 15 days following
the date of this Court’s order.
6. The rules as set out in the Uniform Rules of Court for the filing of further
pleadings will thereafter apply.
THERON J
24
7. The costs incurred to date in the High Court , save in respect of the
application for leave to appeal, are to stand over for determination in the
trial proceedings.
8. The first, second, third, fifth and sixth respondents must pay the
applicants’ costs in the applications for leave to appeal in t he High Court
and the Supreme Court of Appeal.
9. The first, second , third, fifth and sixth respondents must pay the
applicants’ costs in this Court.
For the Applicants:
For the First to Third Respondents :
For the Fifth and Sixth Respondents:
M B Monyemoratho instructed by
Mmamphiwa P hihlela Attorneys
M Makoti, N Ntuli and T Malatji
instructed by Office of the State
Attorney, Polokwane
G R Eg an instructed by Chris
Greyvenstein Attorneys