Sithelo Royal Family and Another v Premier of Eastern Cape and Others (2779/2020) [2021] ZAECMHC 28 (17 August 2021)

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[2021] ZAECMHC 28
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Sithelo Royal Family and Another v Premier of Eastern Cape and Others (2779/2020) [2021] ZAECMHC 28 (17 August 2021)

IN THE HIGH COURT
OF SOUTH AFRICA
[EASTERN CAPE
LOCAL DIVISION: MTHATHA]
Case
no. 2779/2020
In
the matter between:
SITHELO ROYAL
FAMILY
1
st
Applicant
THULANI
PATRICK
SITHOLE
2
nd
Applicant
and
THE PREMIER OF
EASTERN CAPE
1
st
respondent
THE MEC FOR
CO-OPERATIVE GOVERNMENT
& TRADITIONAL
AFFAIRS
2
nd
Respondent
KHIWA ROYAL
FAMILY
3
rd
Respondent
MPUMALANGA
GWADISO
4
th
Respondent
JUDGMENT
JOLWANA
J
[1] 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.
[2] The applicants
instituted motion proceedings on 26 August 2020 under case no.
2779/2020 (the current proceedings) in which they
seek the following
relief:
“
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.”
[3] I have referred
to this matter as the current proceedings to distinguish it from a
different matter in which the almost similar
if not the same relief
was sought under case no.4159/2018 (the withdrawn proceedings).
The withdrawn proceedings were instituted
on 29 August 2018 and were
withdrawn by the applicants’ attorneys in terms of a notice of
withdrawal filed with the registrar of
this Court on 19 February
2020.  During the currency of the withdrawn proceedings the
applicants were granted an order by this
Court on 11 December 2018 in
unopposed motion proceedings in which the first and second
respondents were ordered to recognise the
second applicant as the
headman of Lower Ndungunyeni.
[4] Although the
applicants do not deal with this issue in any details in the founding
affidavit it appears from the first and second
respondents’
answering affidavit that in fact the second applicant was instated as
the headman of Lower Ndungunyeni and paid the
attendant emoluments,
in compliance with the resolution of the Eastern Cape House of
Traditional Leaders dated 22 March 2017 annexed
to the founding
affidavit as annexure TP28 and the court order dated 11 December
2018.  The second applicant does not dispute
these facts in the
replying affidavit.  I therefore accept them as being correct.
[5] The protracted
history of this matter and its factual matrix includes the fact that
on the 18 May 2018 the second respondent addressed
a letter to the
applicants in which the following issues were brought to their
attention:
1. That the intended
recognition of the second applicant as headman of Lower Ndungunyeni
was published in the provincial government
gazette dated 9 August
2017.
2. The said
publication attracted an objection from the 3
rd
respondent
who claimed that the rightful person to ascend to the headmanship of
Lower Ndungunyeni was the 4
th
respondent.
3. That because of
the said objection the second applicant’s recognition could not be
processed unless the 3
rd
respondent agreed.
4. That there was a
decision by the 2
nd
respondent to start a process of
recognising Thozamile Sithelo as an acting headman to act in that
position for and on behalf of
the 4
th
respondent.
5. That the intended
recognition of Thozamile Sithelo as an acting headman of lower
Ndungunyeni would be published in the provincial
gazette in which
interested parties would be invited to submit comments within 21 days
from the date of publication.
6. That once the
name of Thozamile Sithelo had been published in the provincial
gazette the applicants would be provided with a copy
of the notice
and should there be objections to the intended recognition of
Thozamile Sithelo the second respondent would consider
those
objections and take a decision on the person to be recognised as the
headman of Lower Ndungunyeni.
[6] The above is a
truncated content of the letter dated 18 May 2018.  It appears
that the applicants received it in that they
have annexed it to the
founding affidavit as annexure TP29.
[7] The applicants
do not engage with this letter despite its obvious importance.
There is no clear indication of what they
did about it.  I will
deal with the relevance of this letter and the applicants’ failure
to deal with it later herein as its
content may very well be one of
the decisive issues to the entire case.  Suffice it for now to
mention that they deal with it
passively as follows in their founding
affidavit:
“
22.
… I hasten to allude further that the same Khiwa Royal Family
objected in the government gazette intended to recognise me by
filing
an objection that Mpumalanga Gwadiso is another person identified by
Khiwa Royal Family and that was in a letter dated 18
May 2018 which
is marked as PT(sic) 29 annexure hereof.”
[8] I have
hereinbefore mentioned the court order dated 11 December 2018 in
terms of which the first and second respondents were ordered
to
recognise the second applicant in unopposed motion court
proceedings.  It appears that the said court order was later
rescinded
following an application launched by the 3
rd
respondent and one chief Dumisani Gwadiso who is not cited in these
proceedings.  The said court order in terms of which the
rescission application was granted is dated 6 February 2020.  In
addition to rescinding that court order the court also issued
the
following order:
“
3.
The respondent herein (Thulani Sithelo) is hereby directed to file
his supplementary amended and/or amplified founding papers,
if he so
wishes within fifteen days of the granting of this order.”
[9] It appears from
the court order dated 6 February 2020 that the second applicant, Mr
Thulani Sithelo was legally represented when
the rescission
application and the above as well as other orders were granted.
Instead of filing supplementary papers in terms
of the order dated 6
February 2020, the applicants in these proceedings filed a notice of
withdrawal of the entire application under
case no. 4159/2018 on 19
February 2020 which was 13 days from the date on which the rescission
application was granted.  The
withdrawal of case no. 4159/2018
is mentioned in passing by the applicants as follows in the founding
affidavit without any explanation
for the withdrawal of those
proceedings:
“
29.
I hasten to allude that through my current attorneys of record there
was another litigation under case no. 4159/2018 which resulted
to my
appointed by means of a court order and such a court order was
rescinded by Khiwa Royal Family on behalf of Mpumalanga
Gwadiso their incumbent and the
facts were deposed to by their chairperson Dumisani Gwadiso.”
[10] One would have
thought that chief Dumisani Gwadiso has an obvious interest in these
proceedings.  After all he is the chairperson
of the 3
rd
respondent.  He was also an applicant in the rescission
application which was granted on 6 February 2020.  The fourth
respondent
is acting in his position as a senior traditional leader
of AmaKhonjwayo Traditional Community.  Furthermore, if I read
the
court order dated 6 February 2020 correctly, the rescission
order, the court also ordered that Chief Dumisani Gwadiso be joined
in
those proceedings.  This has not been done.
[11] The second
applicant thereafter alleges that after the rescission he instructed
his attorneys to write a letter to the offices
of the 1
st
and 2
nd
respondents asking them to take administrative
action to consider and make a decision regarding his recognition in
line with the
recommendations of the house of traditional leaders on
the basis that those recommendations still stood.  The said
letter is
not annexed to the founding affidavit but is annexed as
SPM1 to the applicants’ replying affidavit.  The applicant
alleges
that it was written on 21 February 2020.  From this
point onwards the founding affidavit derails into other irrelevant
issues
about what he calls a “
huge feud
” in which the 4
th
respondent and other people are alleged to have attacked
certain persons with sticks, bushknives and spears resulting
in some people being injured.  I do not understand how that
attack,
even if it happened, is relevant to whether or not the second
applicant is entitled to the orders sought in the notice of motion.
Thereafter, the founding affidavit further derails into some issues
about the fact that he could not refer the matter to Nyandeni
Great
Place for some reason.  Thereafter the founding affidavit
largely consists of an attempt to summarise the provisions of
some
sections of the Promotion of Administrative Justice Act 3 of 2000
(PAJA) in an attempt to make a case for judicial review.
The
above, is to a lesser or greater extent, a summary of the applicants’
averments as contained in the founding affidavit where
the applicants
would have been expected to make out their case.
[12] One of the
issues raised by the respondents, very pointedly is the undue delay
in launching the current proceedings.  The
respondents contend
that these proceedings should have been instituted within a
reasonable time, more specifically within 180 days.
[13] The 180-day
rule is provided for in section 7(1) of PAJA as follows:
“
7
(1) Any proceedings for judicial review in terms of section 6(1) must
be instituted without unreasonable delay and not later than
180 days
after the date –
(a)
subject to subsection 2(
c
),
on which any proceedings instituted in terms of internal remedies as
contemplated in subsection (2)(
a
)
have been concluded; or
(b)
where no such remedies exist, on which
the person concerned was informed of the administrative action,
became aware of the action
and the reasons for it or might reasonably
have been expected to have become aware of the action and the
reasons.”
[14] The 3
rd
and 4
th
respondents contend that this application was
filed on 26 August 2020 way after the second applicant was advised of
the decision
to refuse to recognise him and the reasons for such
refusal.  It is indeed common cause that the second applicant
was advised
of the decision to refuse recognising him following the
objections received from the 3
rd
respondent.  The
letter containing the refusal decision is annexed to the applicants’
own papers as annexure TP29.  It
is dated 18 May 2018.
[15] In part it
reads:
“
2.
Kindly be advised that after publishing the intended recognition of
Thulani Sithelo as Headman of Lower Ndungunyeni Administrative
Area
under Khonjwayo Traditional Council per Provincial gazette dated 09
August 2017, the department received an objection from Khiwa
Royal
Family claiming that the Headmanship belongs to Nkosi Mpumalanga
Gwadiso from Khiwa Royal Family who is currently acting as
a Senior
Traditional Leader on behalf of Dumisani Gwadiso.
3. Due to the said
objection, recognition of Thulani Sithelo could not be processed
without concurrence of the Khiwa royal family
and Chairperson of
Khonjwayo Traditional Council.”
[16] Besides the
fact that the applicants should have dealt with this letter more
meaningfully and not in passing as they did in the
founding
affidavit, they content themselves with dealing with it in the
replying affidavit again without engaging meaningfully with
its
content.  Furthermore, the first prayer in the notice of motion
does not make sense if regard is had to the letter dated
18 May
2018.  This is because that letter contained among other things,
a decision to refuse to recognise the second applicant.
[17] This failure to
engage with the issue of delay is more glaring regard being had to
the replying affidavit.  The applicants’
replying affidavit to
the 3
rd
and 4
th
respondents’ answering
affidavit passively refers to paragraphs 1, 2, 3, 4 and 5 of the 3
rd
and 4
th
respondents’ answering affidavit.
Thereafter it makes no reference to paragraphs 6, 7 and 8 but jumps
to paragraph 9.
Paragraph 9 of the 3
rd
and 4
th
respondents’ answering affidavit merely prays for the dismissal of
the application based on contentions made in paragraphs 6, 7
and 8
which deal pointedly with the unreasonable delay.
[18] In dealing with
the unreasonable delay in the replying affidavit the applicants make
the following contentions:
“
15.
Ad
paragraph 9;
In these proceedings
the undue delay and 180 days is disputed in the sense that on the
23
rd
August 2018
I instituted the other
proceedings under case number
4159/2018
with similar cause of action which is the dispute of headmanship and
the notice of motion is marked as
SPM1
annexure hereof and the court order was granted by
Honourable
Judge President Mbenenge
on the
11
th
December 2018
and such an order is
marked as
SPM2
annexure.
16.
This order was
operational and effective until the
6
th
February 2020
after a year and one month wherein it was rescinded
by the third and fourth respondents in the circumstances this delay
was not wilful
in that there is a defence of
lis pendins
.
17.
The time period of
180
days was lawfully disturbed by the proceedings which at
some stage was solved by court order later rescinded although I
withdrew
such proceedings to start the new proceedings and a notice
of withdrawal is marked as
SPM3
annexure hereof and the same
third and fourth respondents were involved on this point alone the
respondents contention be dismissed
with costs.
18.
I am further not a
aware of any letter depicted
TP29
except the one which is
TP21
annexure whose author is
F.D. Xhasa
the Member of the
Executive Council Eastern Cape signed on the
15
th
May 2018
by the same MEC.”
[19] All these
contentions are irrelevant to the issue of when the second applicant
became aware of annexure TP29, the letter dated
18 May 2018 which he
annexed in his own founding affidavit.  He does not address the
issue at all.  Instead there is an
attempt to deny the
knowledge of TP29.  This attempt at denial is expressed
in paragraph 18 of the replying affidavit referred to above.
How
the applicants could not be aware of a document annexed to their
own founding affidavit is mind boggling.  Instead of dealing
with TP29 the second applicant professes to be only aware of TP21
which he says is a letter signed by the 2
nd
respondent on
15 May 2018.  TP21 is an annexure to the applicants’ founding
affidavit.  It is captioned “Registration
and Listing of Royal
Family Members”.  This is a far cry from being a letter dated
15 May 2018 and is in fact signed on 25
March 2014.  The
incoherence and lack of serious attention in how the applicants’
papers were drafted and the jumbling of
the annexures is incredible,
to put it mildly.
[20] The applicants’
case is based on the resolution of the Eastern Cape House of
Traditional Leaders.  That resolution is
annexed to the second
applicants’ founding affidavit as TP28 and is dated 22 March 2017.
The second applicant relies on it
explicitly in the founding
affidavit.
[21] He says:
“
21.
In the process of
this dispute the officials of the department and the house of
Traditional leader came in our area to investigate
this calamity and
concluded that I am the rightful heir of Lower Ndungunyeni in the
district of Ngqeleni and such recommendations
are dated
22
nd
March 2017
and marked
TP28
respectively and such
recommendations still stand.
22.
The
paragraph 3
of the said resolutions this Khiwa Royal Family and Thozamile Sithelo
were advised that in the event of non-satisfaction they are
at
liberty to appeal to the Premier and this was never done. I hasten to
allude further that the same Khiwa royal family objected
in the
government Gazette intended to recognize me by filing an objection
that
Mpumalanga Gwadiso
is another person identified by Khiwa
royal family and that was in a letter dated
18
th
May 2018
which is marked as
PT29
annexure hereof.”
[22] If there was
any doubt about the applicants’ reliance on the resolution of the
Eastern Cape House of Traditional Leaders (TP28),
paragraphs 21 and
22 of the founding affidavit and the first prayer in the notice of
motion put paid to such doubt.  The notice
of motion in the
current proceedings specifically refers to it in no uncertain terms
as do paragraphs 21 and 22 of the founding affidavit.
[23] The applicants
do not indicate when they received TP28 in the founding affidavit
despite relying on it for the relief they seek
presumably because
they saw no need to apply for the condonation of any unreasonable
delay.  Even when the issue of unreasonable
delay is raised in
the answering affidavit of the 1
st
and 2
nd
respondents the second applicant is not only curtly dismissive of it
but it appears that the applicants do not wish to confront it
and
deal with it more meaningfully and explain why there was no undue
delay.  This is very surprising considering that the 180-day
rule is a statutory requirement in the first place.  In the
second place the manner of dealing with it is also statutorily by
prescribed. Section 9 of PAJA provides for it as follows:
“
9.
Variation of time
(1)
The period of –
(a)
90 days referred to in section 5
may be reduced; or
(b)
90 days or 180 days referred to in
sections 5 and 7 be extended for a fixed period by agreement between
the parties or, failing such
agreement, by a court or tribunal on
application by the person or administrator concerned.
(2)
The court or tribunal may grant an
application in terms of subsection (1) where the interests of justice
so require.”
[24] In this case
the letter from the Eastern Cape House of Traditional Leaders is
dated 22 March 2017.  The proceedings were
launched on 26 August
2020, some three years and a little over four months later.
When the issue of unreasonable delay is raised
by the respondents the
applicants seek refuge in the withdrawn proceedings which were
instituted under case no. 4159/2018.
There are a number of
problems with relying on those proceedings.  Putting aside the
fact that the second applicant withdrew
those proceedings on 19
February 2020 and instituted the current proceedings on 26 August
2020, there are other insurmountable problems.
I say insurmountable
in the context of the fact that the applicants obviously on the
advice of those representing them elected not
to apply for
condonation or the extension of the period of 180 days.
[25] Some of the
problems are that the 90-day period referred to in section 5(1) of
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 on 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.
[26] Therefore,
trying to meet the unreasonable delay challenge with reference to the
withdrawn proceedings which were themselves
instituted way out of
time on 23 August 2018 is both misguided and unsustainable.  If
he had based his cause of action on the
letter of the second
respondent dated 18 May 2018, he might, in that regard have been
understandable in taking the risky option of
not applying for
condonation in those proceedings.  But even then once those
proceedings were withdrawn, I am not sure that
he is entitled,
without more, to resuscitate them for purposes of dealing with the
failure to apply for condonation.  There
may very well be merit
in the view that once proceedings are validly withdrawn, there is
nothing left of them.  They are as
good as dead.
Therefore, the interruption of the 180-day period by non-existent
proceedings is a long short, at best unless
carefully pleaded in the
founding papers.  I was not referred to any authority for the
proposition that withdrawn proceedings
remain valid for the
interruption of the 180-day period so as to dispense with the need to
apply for condonation without even pleading
the issue properly.
In any event the relevance of the withdrawn proceedings for purposes
of interrupting the 180-day period
escapes me.  This is because
in prayer 1 of the notice of motion of the withdrawn proceedings the
second applicant sought an
order setting aside the refusal to
recognise him based on something that was not mentioned in that
notice of motion which unnamed
thing is dated 18 June 2018.
That speaks to a different cause of action in my view.
[27]
The centrality of the time frames within which the review proceedings
must be instituted cannot be overemphasized.  The
applicable
principles in dealing with the issue of the 180-day requirement have
become crystalized and are trite.  They were
recently restated
in
ASLA
Construction.
[1]
In that case which incidentally emanated from this Division, the
Constitutional Court said:
“
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 the 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 s 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 pre-determined 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 dictates 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’’.
[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.
[29] For reasons
that are altogether unfathomable, the applicants have disavowed any
knowledge of TP29, an annexure to their own founding
affidavit as
stated hereinbefore.  This is inexplicable and makes no sense to
me.  In any event, I am satisfied that the
disavowal of the
knowledge of the 2
nd
respondents’ letter dated 18 May
2018 can only be disingenuous or even worse if regard is had to the
fact that it is annexed to
the founding affidavit.  That letter
brings me to the last issue that I consider necessary to deal with.
That issue is
the fact that the letter dated 18 May 2018 annexed as
TP29 to the founding affidavit communicated a number of decisions
taken by
the 2
nd
respondent.  They are:
1. That there was an
objection to the second applicant’s intended recognition and a
claim that the correct person to be recognised
was the 4
th
respondent.
2. That as a result
of the said objection the 2
nd
applicant’s recognition
was not going to be processed.
3. That another
decision had been taken to start a process of recognising one
Thozamile Sithelo as an acting headman on behalf of
the 4
th
respondent.
4. That the intended
recognition of Thozamile Sithelo would be published in the provincial
government gazette and that comments thereto
would have to be made
within 21 days of publication.
5. That once the
publication of the intended recognition of Thozamile Sithelo was done
the second applicant would be furnished with
a copy of the notice of
publication.  Most importantly if there were objections to the
intended recognition of Thozamile Sithelo
the second respondent would
consider the objections and take a decision.
[30] I have again
briefly re-encapsulated the contents of the letter dated 18 May 2018
for emphasis and also to highlight the fact
that the second applicant
does not deal with these fundamental decisions at all.  It is
not clear to me why the second applicant
did not challenge the
decision not to process his recognition.  Equally surprising is
his decision not to challenge the decision
to recognise Thozamile
Sithelo as an acting headman of Lower Ndungunyeni.  The letter
dated 18 May 2018 must be read together
with the letter dated 24
March 2020 addressed by the 2
nd
respondent to the second
applicant.  In the letter dated 24 March 2020 the second
applicant was informed that his services as
a
headman of Lower Ndungunyeni were being terminated and that he
had 30 days within which to vacate his headmanship.  That letter
is annexed to the 1
st
and 2
nd
respondents’
answering affidavit as MN3 and is dealt with at paragraph 45
thereof.  Very surprisingly the second applicant
is dismissive
of the said letter of the termination of his services.  He does
not say he did not receive it; he merely dismisses
it as having no
bearing to this application.  I find it breath-taking that a
dismissal letter can be said to have no bearing
in proceedings in
which the applicant is basically seeking reinstatement.
[31] The facts are
that he was dismissed as a headman of Lower Ndungunyeni.  He has
not challenged his dismissal.  In these
proceedings he is not
challenging his dismissal.  He is asking this Court to again
order the 1
st
and 2
nd
respondents to recognise
him in terms of the letter dated 22 March 2017, as if it was never
done before and as if he was not dismissed
later.  At paragraph
47 of the answering affidavit of the 1
st
and 2
nd
respondents it is submitted that Thozamile Sithelo has since been
recognised and his recognition was done on the 2 October 2020.
A memorandum which is said to be in terms of the Eastern Cape
Traditional Leadership and Governance Act 1 of 2017 recognising
Thozamile
Sithelo is attached as annexure MN5 to the said answering
affidavit.  Very significantly the second applicant does not
plead
ignorance of the said recognition in his replying affidavit.
He laments a number of things and his laments are incoherent and
difficult if not impossible to make sense of.  Be that as it may
the fact of the matter now is that Thozamile Sithelo has since
been
recognised as the acting headman of Lower Ndungunyeni acting in the
stead of the 4
th
respondent.  The second applicant
was told by the 2
nd
respondent that the recognition of
Thozamile Sithelo was being processed as far back as May 2018.
There could therefore be
no surprise when it was finalized in October
2020.
[32] The recognition
of Thozamile Sithelo is not being challenged in these proceedings.
The second applicant seeks an order
that this Court should order the
1
st
and 2
nd
respondents to appoint him to a
position that is currently occupied by Thozamile Sithelo.  He
does this without seeking that
the appointment of Thozamile Sithelo
as an acting headman for the 4
th
respondent should be set
aside.  In fact, he has, to date, not challenged the process
that led to the appointment of Thozamile
Sithelo nor has he sought
that his appointment be set aside.  In other words,
he wants to be recognised to a position that he knows is
occupied by Thozamile Sithelo on behalf of the 4
th
respondent.  I do not see how that is even legally possible.
In all these circumstances the applicants’ application
must fail.
I do not consider it necessary to deal with the other issues raised
by the respondents.  This is because regardless
of what this
Court may find on those issues the outcome of this application would
still be the same, namely the applicants’ application
must still be
dismissed.
[33] There is
something very disturbing about the manner in which the applicants’
papers were drafted.  The respondents have,
in any event, raised
the issue pointedly.  The state of the applicants’ papers is
atrocious.  I am horrified to see and
read papers of a legally
represented litigant in such a shockingly poor state reflecting
everything from carelessness, gross negligence
to downright
incompetence on the part of those representing the applicants.
The applicants’ papers reveal a level of incompetence
that is
thankfully not a reflection of the standard of litigation or even
drafting of pleadings in this Division.  One does
not often
encounter such a level of abysmal incompetence which is clearly a
disgrace to the legal profession and a terrible disservice
to the
applicants.  I considered inviting the legal representative of
the applicants to make submissions on why costs should
not be on an
attorney and client scale and be paid
de bonis propriis
.
In this judgment I have referred to a number of instances that point
to disgracefully poor legal representation, carelessness
and
incompetence.
[34] In addition to
all that is already mentioned elsewhere in this judgment there are
other glaring examples that I must mention.
They include the
failure to describe the first applicant, annexing a number of
annexures without dealing with them in the affidavits.
The
attachment of no less than 12 confirmatory affidavits from some
relatives of the second applicant which are irrelevant, meaningless
and which serve no useful purpose at all if regard is had to their
content.  Litigation is not a game, let alone a game of chance
where litigants just throw in documents and make meaningless
averments or submissions in their papers.  The required careful
attention must be paid to the pleadings and where the legal
representative does not have the required time to do a decent
albeit
not a perfect job, he or she must simply not take the instruction as
a professional duty owed to the client and out of respect for
his
calling.
[35]
In
Multi-Links
[2]
Fabricius J  expressed the following sentiments with which I am
in respectful agreement:
“
Costs
are ordinarily ordered on the party and party scale.  Only in
exceptional circumstances and pursuant to a discretion judicially
exercised is a party ordered to pay costs on a punitive scale.
Even more exceptional is an order that a legal representative
should
be ordered to pay the costs out of his own pocket.  It is quite
correct, as was submitted, that the obvious policy consideration
underlying the court’s reluctance to order costs against legal
representatives personally, is that attorneys and Counsel are
expected
to pursue their client’s rights and interests fearlessly
and vigorously without undue regard for their personal convenience.
In that context they ought not to be intimidated either by their
opponent or even, I may add, by the court.  Legal practitioners
must present their case fearlessly and vigorously, but always within
the context of set ethical rules that pertain to them, and which
are
aimed at preventing practitioners from becoming parties to a
deception of the court.  It is in this context that society
and
the courts and the professions demand absolute personal integrity and
scrupulous honesty of each practitioner.  See
Kekana
v Society of Advocates of South Africa
[1998] ZASCA 54
;
1998 (4) SA 649
(SCA) at 655-656
[also
reported at
[1998] ZASCA 54
;
[1998] 3 All SA
577
(SCA) – Ed].
It
is true that legal representatives sometimes make errors of law, omit
to comply fully with the Rules of Court or err in other ways
related
to the conduct of the proceedings.  This is an everyday
occurrence.  This does not, however,
per
se
ordinarily result in the court
showing its displeasure by ordering the particular legal practitioner
to pay the costs from his own
pocket.  Such an order is reserved
for conduct which substantially and materially deviates from the
standard expected of the
legal practitioners, such that their
clients, the actual parties to the litigation, cannot be expected to
bear the costs, or because
the court feels compelled to mark its
profound displeasure at the conduct of an attorney in any particular
context.  Examples
are, dishonesty, obstruction of the interests
of justice, irresponsible and grossly negligent conduct, litigating
in a reckless manner,
misleading the court, and gross incompetent and
a lack or care.
See
for instance Herbstein & Van Winsen:
The
Civil Practice of the High Courts of South Africa
(5ed
by Cilliers and others) Volume 2 at page 984.  See also
Ward
v Sulzer
1973 (3) SA 701
(AD) at
706-707 [also reported at
[1973] 3 All SA 628
(AD) – Ed].”
[36] The whole of
the applicants’ papers are littered with a plethora of instances
where the papers themselves call for the costs
to be paid, not by the
litigants but by those representing them.  The applicants’
papers speak for themselves in this regard.
However, Mr
Mkhongozeli who appeared for the applicants apologised for the state
of the applicants’ papers and I consider
that apology to be
genuine.  I therefore will not order that he personally pays the
costs.  This is done in the hope that
he has learnt his
lessons.   Furthermore, the respondents indicated that they
did not insist on a costs order on an attorney
and client scale.
It was submitted on their behalf that costs should be awarded on a
party and party scale.  Indeed, while
I considered make a
punitive order for costs against the second applicant to be paid
de
bonis propriis
I am persuaded by the concessions made by Mr
Mkhongozeli on a number of what he called procedural flaws in the
applicants’ papers
and his apology for them.  Therefore, in
the judicial exercise of my discretion I will make a simple order
that the application
must fail and that costs should follow the
results.
[37] In the result
the following order shall issue:
1. The application
is dismissed with costs.
The second
applicant is ordered to pay costs on a party and party scale.
M.S.
JOLWANA
JUDGE OF THE HIGH
COURT
Appearances:
Attorney for the
Applicants: H.N. Mkhongozeli
Instructed by: H.N.
Mkhongozeli Attorneys
MTHATHA
Counsel for the 1
st
and 2
nd
Respondents: L.L. Sambudla
Instructed by: State
Attorneys
MTHATHA
Attorney for the 3
rd
and 4
th
Respondents: V.V. Msindo
Instructed by: V.V.
Msindo & Associates
MTHATHA
Heard on: 12 August
2021
Delivered on: 17
August 2021
[1]
Buffalo
City Metropolitan Municipality v ASLA Construction (Pty) Ltd
2019
(4) SA 331
(CC) at para 49.
[2]
Multi-Links
Telecommunications Ltd v Africa Prepaid Services, Nigeria Ltd;
Telkom SA Soc. Limited and Another v Blue Label Telecoms
Limited and
Others
[2013]
4 All SA 346
(GNP) at 369 paras 34-5.