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[2022] ZALMPPHC 30
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Matsaung and Others v Mamahule Traditional Authority (HCAA15/2021) [2022] ZALMPPHC 30 (15 June 2022)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: HCAA15/2021
REPORTABLE: YES/NO
OF INTEREST TO THE
JUDGES: YES/NO
REVISED.
In
the matter between:
MAMAELE
GEORGINA MATSAUNG
FIRST
APPELLANT
MANTEBELE
MABYANE
SECOND
APPELLANT
THABO
MABYANE
THIRD
APPELLANT
And
MAMAHULE
TRADITIONAL AUTHORITY
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
On 14
th
April 2021 the respondent (applicant in the main
application) launched an urgent application against the second and
third appellants
(first and second respondents in the main
application) for a spoliation, as well as relief ancillary thereto.
The application was
set down for 28
th
April 2021. In that
application should the appellants wish to oppose the respondent’s
application, they were required to
serve their notice of intention to
oppose by no later than 16h00 on 16
th
April 2021, and
thereafter deliver their answering affidavit by no later than 12h00
on 21
st
April 2021. The application was served by the
sheriff on both the appellants’ on 15
th
April 2021
by affixing on the principal doors of their respective residential
addresses.
[2]
On 16
th
April 2021 the respondent filed a joinder
application in terms of Rule 10 of the Uniform Rules of Court (the
Rules) seeking to
join the first appellant as the third respondent in
the main application. The first appellant in that notice was called
upon to
serve her notice of intention to oppose should she so wish by
close on business of the 16
th
April 2021 and thereafter to
deliver her answering affidavit no later than 21
st
April
2021. On 16
th
April 2021 the respondent also filed a
notice in terms of Rule 28(10) on urgent basis seeking to amend its
notice of motion in
order to include the first appellant as the third
respondent.
[3]
The appellants filed their notice of intention to oppose on 19
th
April 2021. The first appellant filed her answering affidavit on 23
rd
April 2021 with the second and third appellants attaching
confirmatory affidavits to the first appellant’s answering
affidavit.
On 28
th
April 2021 the matter came before AML
Phatudi J who struck out the first appellant’s notice of
intention to oppose and the
answering affidavit with costs on the
ground that it was filed out of the periods fixed by the respondent
without making an application
for condonation for late filing of
their opposing papers. Immediately after the first appellant’s
opposing papers were struck
out, counsel of the appellants’
raised a point
in limine
of the respondent’s
non-compliance with Rule 41A of the Rules. The point
in limine
was upheld and the application was struck off the roll with no order
as to costs.
[4]
On 30
th
April 2021 the respondent filed their Rule 41A
notice and also set the matter down on the urgent roll of the 4
th
May 2021. On 3
rd
May 2021 the appellants’ filed
their Rule 30 notice together with the second appellant’s
answering affidavit. The second
appellant in her answering affidavit
had included a condonation application for late filing of his
opposing papers. On 4
th
May 2021 the matter came before
Muller J. The appellants’ counsel argued three points
in
limine
, but no ruling was made on those points
in limine
.
The presiding Judge adjourned matter to Thursday the 6
th
May 2021 to allow the respondent to file its replying affidavit to
the appellants’ answering affidavit. The points
in limine
raised by the appellants were that of lack of urgency,
locus
standi
of the respondent and that of contravention of the
practice directive by re-enrolling the urgent application in flagrant
disregard
of the rules of court and the practice directive.
[5]
On 6
th
May 2021 when the hearing resumes, counsel for
appellants handed in a substantive application for condonation for
late filing of
the answering affidavit by the appellants. The
condonation application was by way of notice of motion which was a
stand-alone application.
After engagement with court, counsel for the
appellants abandoned the stand-alone application, and proceeded to
argue the condonation
application as it appears in the appellants
answering affidavit.
[6]
The Muller J dismissed the appellants’ condonation application
on the basis that it was a belated
attempt by the second appellant to
reverse her earlier decision of filing a confirmatory affidavit to
the first appellant’s
answering affidavit which was disallowed.
Further that when the second appellant realised that the first
appellant’s answering
affidavit has been disallowed, she needed
to do something about the situation. After the dismissal of the
appellant’s condonation
application, the court
a quo
dealt with the matter on unopposed basis and granted the orders as
prayed for by the respondent. The default order granted included
the
first appellant. From the transcribed records, it does not appear
that the first appellant was at any stage formally joined
to be a
party to the proceedings. Since the first appellant’s opposing
papers were struck out, it does not appear that the
first appellant
took part in further proceedings that continued. It is therefore not
clear on what basis the default order was
also against the first
appellant despite she not been a party to the proceedings.
[7]
The appellants are appealing against the whole of the judgment and
order of Muller J handed down on
6
th
May 2021. The appeal
is with the leave of the Supreme Court of Appeal. The appellants are
seeking that the orders of the court
a quo
be set aside, and
be substituted with an order dismissing the respondent’s
application, alternatively that the application
be struck from the
roll with costs.
[8]
The issue which this court is required to determine is whether the
court
a quo
was correct in refusing to grant the appellants
condonation for late filing of their opposing papers. Should this
court find that
the court
a quo
erred in refusing the
appellants’ condonation application, the other issue to be
determined is whether the respondent’s
application should have
been dismissed.
[9]
The factors which a court must consider when exercising its
discretion whether to grant condonation
includes the degree of
lateness, the explanation for the delay, the prospects of success,
degree of non-compliance with the rules,
the importance of the case,
the respondent’s interest in finality of the judgment of the
court below, the convenience of
the court and the avoidance of
unnecessary delay in the administration of justice. (See
Dengetenge
Holdings (Pty) Ltd v
Southern Sphere
Mining and Development Company Ltd and Others
[1]
).
[10]
In
Van
Wyk v Unitas Hospital
[2]
the Court said:
“
This court
has held that the standard for considering an application for
condonation is the interest of justice. Whether it is in
the
interests of justice to grant condonation depends on the facts and
circumstances of each case. Factors that are relevant to
this enquiry
include but are not limited to the nature of the relief sought, the
extent and cause of the delay, the effect of the
delay on the
administration of justice and other litigants, the reasonableness of
the explanation for the delay, the importance
of the issue to be
raised in the intended appeal and the prospects of success.”
[11]
When the application was first heard before AML Phatudi J on 28
th
April 2021, the first appellant had filed an answering affidavit,
whilst the second and third appellants have filed confirmatory
affidavits to the first appellant’s answering affidavit. The
first appellant’s answering affidavit was disallowed by
AML
Phatudi J, and that resulted in the second and third appellants
without any answering affidavit before court.
[12]
The court
a quo
found that the second appellant had belatedly
realized that in order to oppose the respondent’s application
she now had to
depose an affidavit which she had elected not to
depose, but rather to confirm the answering affidavit of the first
appellant.
The court
a quo
further found that to be a belated
attempt to reverse a decision that the second appellant had made, and
just wanted to do something
about the situation since the first
appellant’s answering affidavit had been disallowed. The court
a quo
was therefore not convinced that condonation should
granted especially where a litigant who with the aid of an attorney,
and a
counsel has decided to disregard with impunity the time limits
set in the notice of motion.
[13]
The court
a quo
in refusing the appellant’s application
for condonation had considered only one factor, and that is the
explanation for the
delay and disregarded the other factors that I
have mentioned in paragraph 9 and 10 above. It is trite that in
urgent applications,
it is the applicant who determines the time
frames within which the respondent had to comply with in case the
respondent wishes
to oppose the application, and the respondent had
to comply with those time frames. The appellants were not extremely
late in filing
their answering affidavit, and the respondent had
failed to show what prejudice it would have suffered as a result of
the late
filing of the appellants’ opposing papers which could
not have been cured by a costs order.
[14]
The appellants are challenging the
locus standi
of the
respondent in that it is alleged that it is not a duly established
traditional authority in accordance with the laws of
the Republic of
South Africa as stated by the respondent in its founding affidavit.
According to the appellants, the Premier has
refused to recognise the
respondent as a traditional authority, which decision they
successfully took on review. The appeal court
has ordered the Premier
to go and reconsider his decision to refuse to recognize the
respondent as a community, and that reconsideration
is still pending.
The appellant has raised that as a point
in limine
which was
argued on 4
th
May 2021 before Muller J and he had not made
any ruling on that point
in limine
. If that point
in limine
is to be upheld, it will dispose of the whole matter.
[15]
Even if the point
in limine
of
locus standi
is not
upheld, this dispute has the potential to divide the whole community.
It will create two factions for those who support
the appellants and
those who support the respondent. It will also create confusion as to
where to go in case a community member
needs assistance. This matter
was therefore raising an issue of importance to the members of the
community. It was therefore in
the interest of justice for the court
a quo
to have granted condonation for the late filing of the
respondents opposing papers so that there is finality in the
litigation
and certainty in the community, and avoid ever pending
disputes.
[16]
The court
a quo
did not adequately consider the factors which
are to be taken into consideration when exercising its discretion
whether to grant
or refuse condonation. The court
a quo
has
therefore erred in refusing to grant the appellants condonation for
late filing of their opposing papers.
[17]
Turning to the issue whether the respondent’s application
should be dismissed, the parties before the court
a quo
have
already argued several points
in limine
that had been raised
by the appellants. However, the court
a quo
did not make
rulings on those points
in limine
. One of the points
in
limine
raised by the appellants was that the respondent did not
have
locus standi
to institute legal proceedings against them.
In the court
a quo
the appellants have argued that the
respondent is not recognized in law as an established traditional
authority. The appellants
further submitted that the laws that
regulate recognition of traditional authority are the Framework Act
and Limpopo Act. It is
the appellants’ contention that the
respondent had applied to the Premier’s office for recognition
which application
was refused. Thereafter the respondent successfully
reviewed the decision of the Premier, and the matter was referred
back to the
Premier for reconsideration of his decision. The Premier
has not yet made a decision on that.
[18]
The respondent before this court has argued that the community of
Mamahule is a clearly
universitas personarum
of natural
persons who identify themselves as a tribal community and under the
late chief Ezekiel Matsaung. That the respondent
had existed in fact
and has been in this court and the constitutional court in many
instances and could not have gone to the constitutional
court or even
this court if it is incapable of instituting or defending legal
proceedings. That the respondent exists
de facto
and had
litigated up to the constitutional court and had an interest in
getting the assets listed in the spoliation proceedings.
[19]
It is trite that in litigation proceedings, the first thing to
establish is the
locus
standi in
iudicio
of
the litigant. In
Four
Wheel Drive Accessory Distributors v
Rattan NO
[3]
Schippers JA said:
“
The logical
starting point is
locus standi
– whether in the circumstances the plaintiff had an interest in
the relief claimed, which entitled it to bring the action.
Generally,
the requirements for
locus standi
are these. The plaintiff must have an adequate interest in the
subject matter of the litigation, usually described as a direct
interest in the relief sought; the interest must not be too remote;
the interest must be actual, not abstract or academic; and
it must be
a current interest and not a hypothetical one. The duty to allege and
prove
locus standi
rests on the party instituting the proceedings”
[20]
Section 38 of the Constitution has introduced a departure from common
law in relation to standing. It provides
as follows:
“
Anyone listed in
this section has the right to approach a competent court, alleging
that a right in the Bill of Rights has been
infringed or threatened,
and the court may grant appropriate relief, including a declaration
of rights. The persons who may approach
the court are-
(a)anyone acting in their
own interest;
(b)anyone acting on
behalf of a person who cannot act in their own name;
(c)anyone acting as a
member of, or in the interest of, a group or class of persons;
(d)anyone acting in the
public interest; and
(e)an association acting
in the interest of its members.”
[21]
On plain reading of section 38 of the Constitution, it is applicable
where a party is alleging that a right
in a Bill of Rights has been
infringed or threatened. In other words, ordinarily section 38 may be
invoked where a challenge is
based on a right in chapter 2 of the
Constitution. The respondent in its application did not invoke
section 38, and is therefore
not applicable to it.
[22]
The respondent does not dispute that the Premier of Limpopo has not
yet recognized it as a traditional authority.
In Limpopo the
establishment of traditional authority/council is been regulated by
the
Traditional
Leadership and Governance Framework Act
[4]
(The Framework)
and
Limpopo Traditional Leadership and Institutions Act
[5]
(Limpopo Traditional Leadership Act). In terms of section 4 of the
Limpopo Traditional Act, it is the Premier of the Province who
is
empowered to recognise a traditional community. The traditional
community must within 30 days after recognition establish a
traditional council/authority.
[23]
The appellants’ counsel has argued that the Framework Act and
the Limpopo Traditional Leadership Act
has not been complied with for
the respondent to be recognized as a traditional authority. The
respondent’s counter argument
was that the community of
Mamahule is a
universitas personanum
of natural persons who
identified themselves as a tribal community and under the leadership
of the late Ezekiel Matsaung, and therefore
the respondent had
existed in fact.
[24]
In
Bakgaka
– Ba – Mothapo Traditional Council v Tshepho Mathule
Mothapo &
Others
[6]
Dlodlo JA said:
“
[12]The provisions
regulating the composition and recognition of traditional councils
are clear, unambiguous and consistent with
the stated purpose of the
legislation. The purpose is the recognition of the institution of
traditional leadership. These provisions
must be complied with.
[13]The Traditional
Council indeed had no
locus standi
to institute and prosecute the action against the respondents in that
it did not comply with the provisions of both the Framework
Act and
the Limpopo Traditional Leadership Act…Compliance with
relevant legislation also seeks to eliminate such confusion.
It must
be known who are the members of the Traditional Council recognised
and Gazetted by the Premier.”
[25]
Before this court counsel for the respondent has correctly conceded
that the Premier has not yet recognized
the respondent as a
traditional authority. The respondent has not yet complied with the
provisions of both the Framework Act and
the Limpopo Traditional
Leadership Act, and therefore, it lacks
locus standi
to
institute and prosecute the action against the appellants. It follows
that the appeal stands to be upheld.
[26]
In the result I make the following order:
26.1 The appeal is upheld
with costs.
26.2 The order of the
court
a quo
is set aside and substituted with the following:
“
(a)Condonation
of the respondents’ late filing of their notice of intention to
oppose and answering affidavit is granted.
(b) The respondents’
point in limine of locus standi is upheld and the application is
dismissed with costs.”
MF
KGANYAGO
JUDGE
OF THE HIGH COURT OF SA
LIMPOPO
DIVISION, POLOKWANE
I
AGREE
EM
MAKGOBA
JUDGE
PRESIDENT OF THE HIGH
COURT
OF SA, LIMPOPO DIVISION
I
AGREE
M
NAUDE
JUDGE
OF THE HIGH COURT OF SA
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the appellant
:
Adv M Mpshe SC
Adv
Mzilikazi
Instructed
by
:
Malose Matsaung Attorneys
Counsel
for the respondent
:
Adv M R Maphuta
Adv
A Seshoka
Instructed
by
:
GM Tjiane Attorneys
Date
heard
:
10
th
June 2022
Electronically
circulated on
:
15
th
June 2022
[1]
[2013]
2 All SA 251
(SCA) at para 11
[2]
[2007] ZACC 24
;
2008
(2) SA 472
(CC) at para 20
[3]
[2018]
ZASCA 124
;
2019 (3) SA 451
(SCA) (26 September 2018) at para 7
[4]
41
of 2003
[5]
6
of 2005
[6]
[2019]
ZASCA 130
(30 September 2019) at para 13