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[2022] ZAECMHC 36
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Mbabama v Premier of the Eastern Cape and Others (6246/2018) [2022] ZAECMHC 36 (1 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISON, MTHATHA)
Case
No: 6246/2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
In
the matter between:
BAMBELELA
MBABAMA
APPLICANT
And
THE
PREMIER OF THE EASTERN CAPE
1
ST
RESPONDENT
THE
MEC FOR CO-OPERATIVE GOVERNANCE
&
TRADITIONAL
AFFAIRS
2
ND
RESPONDENT
HOUSE
OF TRADITIONAL LEADERS
EASTERN
CAPE
3
RD
RESPONDENT
THE
AD HOC COMMITTEE ON TRADITIONAL
LEADERSHIP
DISPUTES
4
TH
RESPONDENT
APHIWE
MATSHANDA
5
TH
RESPONDENT
KHETHANI
TRADITIONAL COUNCIL
6
TH
RESPONDENT
JUDGMENT
SMITH
J:
[1]
The applicant seeks an order reviewing and setting aside the decision
of the House
of Traditional Leaders, Eastern Cape (the third
respondent), which was taken on the advice of the Ad Hoc Committee on
Traditional
Leadership Disputes (the fourth respondent), to remove
him as headman of the Ngcolosi Administrative Area (the Area). He
also seeks
orders, amongst others, setting aside the appointment of
one Aphiwe Matshanda (the fifth respondent) as the headman for that
area
and reinstating himself as headman. Only the fifth respondent
opposed has the application.
[2]
The applicant’s claim was based on the assertions that he has a
hereditary claim
to the headmanship of the Area and that he had been
headman since 1995.
[3]
On 27 June 2017, he was given a notice to attend a meeting arranged
by the fourth
respondent for 28 June 2017, where the headmanship of
the Area would be discussed. He complained that the notice was too
short
and that he was not allowed to prepare himself properly. His
objection was, however, rejected and the meeting proceeded,
nevertheless.
He asserts that the procedure adopted at the meeting
was biased and unfair to him. He was not allowed sufficient to make
proper
representations and some of the people supporting him were not
allowed to speak. He was also not given sufficient opportunity to
present supporting documents, which he was unable to collate at such
short notice. The fourth respondent thereafter took the decision
to
remove him as headman, without having proper regard to all the facts
and evidence presented at the meeting. He asserts that
the fifth
respondent’s subsequent appointment as headman was null and
void, since he has no heredity claim to the position,
but was voted
into the position by his supporters. The applicant also provides an
extensive historical background in support of
his contention that he
has a heredity claim to the position of headman for the Area.
[4]
In addition to disputing the applicant’s claim to heredity
entitlement to the
position of headman of the Area, the fifth
respondent also raised two points
in
limine
, namely
that of
res
judicata
and that the review was brought
outside the 180-day period prescribed by the Promotion of
Administrative Justice Act, No 3 of 2000
(PAJA). The applicant did
not apply for an order condoning his non-compliance with PAJA.
[5]
The fifth respondent’s point of
res judicata
is based on
the fact that the applicant brought another application under case
number 1698/2018 (the first application), wherein
he cited the fifth
respondent, the Khethani Traditional Council, the third respondent in
this matter, and the MEC for Cooperative
Governance and Traditional
Affairs (the second respondent in this matter).
[6]
In that application, in addition to seeking an interim order staying
the fifth respondent’s
installation as headman pending final
determination of an administrative appeal, he also sought an order
reviewing the decision
of the third respondent. That application,
including a related application which the applicant had brought under
case number 2242/2018,
was dismissed with costs by Griffiths J on 2
August 2018. It appears from Griffiths J’s order that he
had delivered an
ex tempore
judgment. However, the transcript
of that judgment was not included in the record.
[7]
Mr Mantyi, who appeared for the applicant, submitted that the first
application sought
to assail a different decision and that different
parties were involved. He submitted that the matter is therefore not
res judicata
.
[8]
I disagree with this submission. Apart from the fact that additional
respondents were
cited in the current application, the first
application sought to assail the same decision that is being impugned
in this application.
The main relief sought by the applicant in this
application is for an order ‘that the decision of the 3
rd
and 4
th
respondents, endorsed by the 1
st
and
2
nd
respondents, to remove the Applicant as headman of
Ngcolosi be reviewed and set aside’. In the notice of motion
filed in
the first application, under paragraph 2.4, the applicant
sought an order, ‘that the decision of the 3
rd
respondent and endorsed by the 4
th
respondent be reviewed
and set aside’. The notices of motion therefore referred to the
same decision, namely the one taken
by the House of Traditional
Leaders, and which was subsequently endorsed by the MEC for
Cooperative Governance and Traditional
Affairs or the Premier of the
Province, terminating his headmanship of the Area. It was an
application for review in respect of
that order that Griffiths J
dismissed on 2 August 2018.
[9]
Mr Mantyi also submitted that the first application was not dismissed
on the merits,
but on technicalities. However, he was unable to
provide any basis for this submission since Griffiths J’s
ex
tempore
judgment had apparently not been transcribed and did not
form part of the record.
[10]
The requirements for the defence of
res judicata
are that
there must be: (a) concluded litigation; (b) between the same
parties; (c) in relation to the same thing; and (d) based
on the same
cause of action.
[11]
In my view there can be little doubt that the litigation instituted
by virtue of the first application
involved the same parties who are
involved in this application. The parties with substantial interests
in the outcome of the matter,
namely the applicant, the fifth
respondent, the entity that took decision, namely the House of
Traditional Leaders, were all cited
in that application. The fact
that the applicant had seen it fit to add additional parties who may
have some interest in the matter
in this application, is unimportant.
[12]
The applicant sought an order reviewing and setting aside the
decision of the House of Traditional
Leaders removing him as headman
of the Area in both applications. Griffiths J dismissed the first
application in terms of his
ex tempore
judgment, which
rendered that issue
res judicata
. I am accordingly of the view
that the point
in limine
must be upheld and that the
application can be dismissed on this basis alone.
[13]
Although it is strictly speaking not necessary for me to decide the
other
in
limine
point raised by the fifth respondent,
namely that the applicant failed to bring the application within the
180-day period prescribed
by PAJA, I am of the view that that point
was also a good one. It is clear from the averments contained in the
applicant’s
founding papers that the application was launched
outside of the 180-day period. After this point was taken in the
fifth respondent’s
answering affidavit, the applicant belatedly
attempted to cure this defect by alleging that he had received the
notification that
the law did not provide for an appeal against the
House of Traditional Leader’s decision only during October
2018, although
the letter was dated 3 March 2018. He did not bother
to explain how it came about that he did not receive the letter
during March
2018, despite the fact that it was common cause that the
letter had been despatched to him. Instead of explaining the cause
for
the delay and seeking condonation, he has obstinately persisted
with his assertion that he had complied with the PAJA prescripts.
As
mentioned earlier, the applicant had realised as early as April 2018
that he was required to institute review proceedings, hence
the
launching of the first application. It is trite that condonation for
failure to comply with the time period prescribed by PAJA
is not
simply there for the asking. An applicant seeking condonation must
provide a proper explanation for his or her failure to
comply with
the Act. The applicant has failed to do so and the case therefore
falls to be dismissed on this basis also.
[14]
For these reasons it is not necessary for me to traverse the merits
of the application.
[15]
In the result the application is dismissed and the applicant is
ordered to pay the fifth respondent’s
costs of opposition.
J.E.
SMITH
Judge
of the High Court
APPEARANCES
Date
of hearing
: 18 August 2022
Date
of delivery
: 1 September 2022
Attorney
for the Applicant
: Mr.
Mantyi
:
Mantyi Attorneys
1
st
Floor, Clublink
Building
28 Madeira Street
137 York Road
MTHATHA
Attorney
for the Respondent :
Mr. Sapulana
:
D.Z. Dukada & Company
Attorney for 5
th
Respondent
73 Nelson Mandela Drive
MTHATHA