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[2020] ZALMPPHC 54
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Maile and Another v Premier of Limpopo and Others (1743/2018) [2020] ZALMPPHC 54 (25 June 2020)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case no: 1713/2018
In the matter
between:
MMANKWANA
ANIEKIE MAILE
FIRST APPLICANT
BALEPYE ROYAL
FAMILY
SECOND APPLICANT
And
PREMIER
OF LIMPOPO
FIRST RESPONDENT
MEC-DEPARTMENT
OF CO-OPERATIVE
GOVERNANCE,
HUMAN SETTLEMENT
AND
TRADITIONAL AFFAIRS, LIMPOPO
SECOND RESPONDENT
BA-PHALABORWA
LOCAL MUNICIPALITY
THIRD RESPONDENT
JUDGMENT
MULLER
J:
[1]
This application has two parts. It is
the main application in term whereof the applicants claim that the
Premier of Limpopo (the
first respondent) make a decision in the
application by the Balepye community to be recognised as a
traditional community in terms
of section 3 of the Limpopo
Traditional Leadership and Institutions Act.
[1]
[2]
The second part of the application is,
what counsel for the first and second respondent
[2]
termed, the "interlocutory application" in terms whereof
the respondents claim from the applicants the costs in the main
application and that the applicants be declared vexatious litigants
in terms of section 2(b) of the Vexatious Proceedings Act
[3]
as well as an interdict. The respondents also claim the costs of the
interlocutory application and, in the alternative, that the
attorneys
of the applicants be ordered to pay the costs "from their own
pockets" in the event of opposition.
[3]
The issue of the costs can best be
decided at the end of the proceedings and not before the main
application is determined. The
same considerations apply to the
prayer that the applicants be declared vexatious litigants. The
applicants can hardly be regarded
as vexatious litigants, should the
main application succeed.
[4]
It is for this reason that I will now
turn to the main application. During 2013, and as a result of a
successful land claim, the
late chief John Masetle Maenetja of
Balebye was invited by the Regional Land Claims Commission; Limpopo
to
attend a handing over ceremony where the title deed to
the land to the Balepye community was handed to the chief.
[5]
The late chief was replaced by his son
Metro Maenetja who was the sole heir to the position of Kgosi of the
Balepye community. A
letter dated 4 July 2015 in which Metro Maenetja
was identified as the successor of the late chief was forwarded to
the respondents
for recognition. No reaction was received from the
respondents.
[6]
After enquiries it was established that
there is no record of the application. The applicants decided to
apply afresh. A fresh application
for recognition of the community as
a traditional community and an application for recognition of their
identified senior traditional
leader were prepared.
[7]
The application for recognition of the
Balepye community as a traditional community in terms of section 3(2)
of the Limpopo Act
was forwarded to the first respondent under cover
of a letter from Leshilo Attorneys Incorporated, on 19 June 2017. The
office
of the first respondent acknowledged receipt of the
application on 30 June 2017 and also confirmed that the documents had
been
forwarded to the second respondent for attention.
[8]
Leshilo Attorneys addressed a letter
dated 3 August 2017 (which was hand delivered on 25 August 2017) to
the office of the first
responderit in terms whereof they stated that
they are awaiting the decision of the first respondent. The first
respondent did
not reply to the letter.
[9]
On 24 October 2017 a letter was also
addressed to the second respondent in terms whereof reference was
made to the letter dated
3 August 2017 and the fact that no reply was
received. The second respondent was warned that if no reply is
forthcoming within
a period of five days, the court will be
approached to compel the first respondent to announce his decision in
respect of the application
for recognition as a traditional
community.
[10] The second
respondent also failed to reply. On 8 March 2018 the notice of motion
was issued and
served on the first respondent on 18 April 2018 and on
the second respondent on 24 April 2018.
[11]
The respondents served an answering
affidavit only on 27 June 2018. At the very outset the point was
taken that the application
is premature as the Premier must first
recognise their traditional leader. Once the traditional leader is
recognised, the community
may apply to be recognised as a traditional
community. The respondents further stated that the commission (and I
will assume that
it is a reference to the Kgatle commission) only
finished its work on 31 December 2017 and that the result of the
investigation
of the commission was published in May 2018. This
application is, therefore, premature as it was instituted before a
proper application
for recognition as a traditional community had
been made in terms of section 3(2) of the Limpopo Act.
[12]
The respondents also raised certain
points
in limine.
The
first point is that the affidavit of the deponent and confirmatory
affidavits were not properly commissioned by the commissioners
of
oaths. During argument senior counsel for the respondents abandoned
further reliance on the first point. She, however, persisted
with the
second point that the papers lack the necessary averments for a
mandatory interdict as no proper basis had been laid and
the third
point that the applicants must stand or fall by the averments in
their founding affidavit. I do not propose to deal in
detail with
each of the points save to say that they have no merit.
[13]
The case of the applicants is simple and
straightforward. I will endeavour to explain.
[14]
In terms of Chapter 2 of the Limpopo
Act, a community, envisaged by section 2(1) of the Traditional
Leadership and Governance Framework
Act,
[4]
may apply in writing
[5]
to the Premier for recognition as a traditional community.
[6]
As stated before, it is not disputed that such a written application
had been submitted to the first respondent who in turn forwarded
the
same application to the second respondent for attention and
processing.
[15]
The applicants pinned their colours to
the mast of section 3(3) and 3(4) of the Limpopo Act, after having
submitted their written
application, as envisaged by section 3(2),
for recognition as a traditional community, to the first respondent.
Section 3(3), 3(4)
and 3(5) reads:
" 3(3) The Premier must, upon receipt of
the application referred to subsection (1), if satisfied that the
community concerned
complied with the provisions of subsection (2),
refer the matter to the provincial house of traditional leaders, the
relevant local
house of traditional leaders, and any senior
traditional leader whose traditional community is, in the opinion of
the Premier,
likely to have an interest in the matter and if
applicable, the king or queen under whose jurisdiction the group
would fall, for
their comments, which comments must be submitted
within 30 days of the referral.
(4)
The Premier must, within three
months of receipt of the application referred to in subsection (1),
subject to subsection (3) take
a decision on whether to recognise the
community concerned as a traditional community and inform the
community concerned of the
said decision.
(5)
Before taking a decision not to
recognise the community concerned as a traditional community, the
Premier must invite the community
to furnish reasons why the
application should not be turned down on the basis of the reasons
stated by the Premier."
[16]
Section 3(4) is very clear and admits of
no ambiguity. The Premier must within three months of receipt of the
application make a
decision on whether to recognise the community as
a traditional community and must communicate the decision to the
community concerned.
If the Premier makes a decision to recognise a
community as a traditional community he/she must simultaneously
determine the territorial
area of such a community; issue a
prescribed certificate of recognition and within thirty days of the
decision, publish details
of such recognition in the Gazette.
[7]
[17]
Section 211 and 212 of the Constitution
gives recognition to traditional communities. Section 212 makes
provision for the enactment
of national legislation to provide for
the role of traditional leadership as an institution, in matters
effecting local communities.
The courts, in disputes emanating from
traditional leadership, must apply customary law in terms of section
211(3) which provides:
"(3)
The courts must apply customary law when that law is applicable,
subject to the Constitution and any legislation that
specifically
deals with customary law."
[18]
Both the Framework Act and the Limpopo
Act provide for the restoration of the legitimacy of traditional
communities and leaders
in accordance with customary law and
practices.
[8]
[19]
In terms of the provisions of section
3(1) of the Limpopo Act, the first respondent is empowered to
recognise a community as a traditional
community.
[9]
For the premier to recognise a traditional community he/she must make
a decision.
[10]
The Premier in terms of the empowering provision, is a functionary
exercising a public power as an organ of State.
[11]
All exercise of public power, be it legislative, executive or
administrative, is subject to judicial review.
[12]
[20]
In terms of section 6(2)(g) of The
Promotion of Administrative Justice Act
[13]
a court has the power to review an administrative action, if the
action concerned consists of a failure to take a decision. Section
6(3) provides:
"If any person relies on the ground of
review referred to in subsection (2) (g), he or she may in respect of
a failure to take
a decision, where-
(a)....
(b)(i) an administrator has a duty to take a
decision;
(ii)
a law prescribes a period within which the administrator is required
to take that decision; and
(i) the administrator has
failed to take that decision before the expiration of that period,
institute proceedings
in a court or tribunal for judicial review of
the failure to take the decision within the period on the ground that
the administrator
has a duty to take the decision notwithstanding the
expiration of that period.
[21]
The applicants in my view has made a
clear case for relief under section 6(3)(b) of PAJA. The declaratory
order prayed for in prayer
2 is unnecessary as the section 3(4) of
the Limpopo Act, which is the applicable law, placed a duty to make a
decision within three
months of receipt of the application, squarely
on the shoulders of the Premier.
[22]
The three months period in which the
first respondent was required to make a decision expired on 1 October
2017. The first respondent
has failed to make a decision within the
stipulated time period. The applicants have a statutory right, in
terms of the provisions
of section 3(4) of the Limpopo Act, to
enforce that right by means of a
mandamus.
[23]
The defences raised by the first
respondent are untenable. The outcome of the Kgatle commission is
irrelevant with regard to the
right of the applicants in terms of
section 3(4) of the Limpopo Act to demand a decision from the first
respondent. The Premier
is obliged to make a decision once an
application in terms of section 3(2) is received by him/her. Whatever
the decision is, the
premier is obliged to communicate it to the
applicants. The first respondent is required to simply make a
decision.
[24]
This application could have been avoided
by the respondents. All that was needed was a letter addressed to the
attorneys of the
applicants to explain that the first respondent
awaited the outcome of the investigation by the commission or the
applicants could
have been informed that they must first apply for
the recognition of the traditional leader that had been identified,
before a
deci3ion can be made. But, instead, the respondents chose to
ignore the application by the applicants. It is certainly the duty
of
the second respondent to assist the applicants to realise their
rights. But, that is not all. After this application had been
instituted, the first respondent should have realised that he is
obliged to make a decision. He could have made the decision in
the
interim and thereby could have averted any possible adverse costs
order. The respondents nevertheless, despite this obligation
to make
a decision, persisted with untenable defences and, in addition,
instituted an interlocutory application, to which I will
now turn my
attention.
[25]
The Assistant State Attorney deposed to
the facts in the founding affidavit of the interlocutory application.
She stated that the
interlocutory application was lodged in terms of
Rule 41 for payment of the costs in respect of the main application
which was
set down by the applicants for 18 February 2019. The
application was removed from the roll in terms of a notice delivered
on 14 February
2019.
[26]
On or about 21 May 2019 the applicants
delivered another notice of set down for 9 September 2019. The legal
team of the respondents
attended court on 9 September 2019 but the
legal team of the applicants were not in attendance. (the deponent
failed or neglected
to explain what had happened at court with the
application that had been set down.)
[27]
Another notice of set down was delivered
on 10 October 2019 for hearing of the main application on 17 February
2020. Again the legal
team of the applicants failed to be present at
court on 17 February 2020 and thereby effectively abandoned their
application. (Again
nothing was said what had happened with the
application at court.)
[28]
Thereafter, on 27 February 2020, yet
another notice of set down was delivered in terms whereof the main
application was set down
for hearing on 15 June 2020. The deponent
concluded by stating in paragraph 22:
"It
has been authoritatively decided that a party that withdraws an
action or an application is liable to pay the costs to
the other
party. In this regard the Applicants are liable to pay the costs to
the Respondents."
[29]
In respect of the costs order that the
respondents seek, the deponent goes on to state that the applicants
should pay the costs
on a punitive scale on the basis that the case
was not properly set down (for 15 February 2020) after the
application had been
abandoned. (I hasten to interpose that both the
applications were fully argued on 17 June 2020 by counsel on both
sides.)
[30]
In respect of the prayer to declare the
applicants vexatious litigants the deponents stated:
"30.
It is humbly submitted that the Applicants should not be allowed to
proceed with their application until such time that
the Judge
President gives them permission to proceed in which case the
Applicants will have to provide security for costs.
31. In
addition the Applicants should be interdicted from proceeding with
the application unless the Applicants have obtained written
permission from the Judge President".
[31]
The deponent continued to state that the
respondents seek an interdict prohibiting the applicants from
continuously setting the
main application down and then abandoning it
without any warning to the respondents, and to protect the good name
and reputation
of the respondents.
[32]
The interlocutory application was set
down for hearing on the unopposed roll on 9 June 2020. On the day of
hearing counsel for the
applicants appeared and handed up a notice to
defend, together with an answering affidavit.
[33]
Counsel for the respondents objected
stating that the notice to defend was out of time and therefore also
the answering affidavit.
Counsel for the applicants agreed that the
notice to defend was out of time but stated that it was in time to
avert default judgment
being granted. The answering affidavit is not
out of time. Counsel for the applicants brought to the attention of
the court that
the main application has been set down for hearing on
15 June 2020. (The papers in the main application were filed in a
different
file than the papers in interlocutory application). The
court considered that it is in the interests of justice that the
application
be heard with the main application. The respondents were
entitled to file a replying affidavit, if any before that date.
[14]
Counsel for the applicants conceded that the wasted costs should be
tendered by the applicants. The applicants were ordered to
pay the
wasted costs.
[34]
Counsel for the respondents persisted
with her objection to allowing the answering affidavit when the
interlocutory application
was argued on 17 June 2020.
[15]
Everyone has the right to have any dispute that can be resolved by
the application of law decided in a fair hearing before a court.
[16]
However, a limitation to this right is permissible, provided that
such limitation is reasonable. The court has the right to impose
procedural limitations on litigation by persons found to be
vexatious. In addition, an inordinate or unreasonable delay in the
prosecution of an action (or motion proceedings) may constitute an
abuse of process which may warrant dismissal of the action or
motion
proceedings. There must be an inexcusable delay which seriously
prejudice the respondent.
[17]
A respondent may under such circumstances apply to have the motion
proceedings dismissed.
[35] The main
application to which the interlocutory application has reference was
set down for hearing
on 15 June 2020. I cannot see what additional
prejudice (which was not cured by the costs order) respondents could
possibly have
suffered if the interlocutory application, which is
predicated upon the main application, are heard together with the
main application.
I am of the view that the answering affidavit
should be admitted and equally so, the replying affidavit.
[18]
[36] In the answering affidavit, the
applicants, not to be outdone by the respondents, in turn also raised
a point
in limine
that Rule 41 is not the applicable rule to
claim costs, against the particular facts of this matter.
[37] The applicants
explained in the answering affidavit that the application was removed
from the roll
of 18 February 2019 because the file could not be
located by the registrar when the roll was closed without the
application being
placed on the roll.
[38] The case was set
down but not enrolled on 9 September 2019. Supplementary heads of
argument were served
and filed on 5 September 2019. The application
was yet again not enrolled by the registrar. On that day the legal
representatives
of the respondents were not in court. The registrar
again informed the attorney of the applicants that the file could not
be located.
[39]
A further date was obtained for hearing
from the registrar on 17 February 2020. The notice of set down was
served upon the respondents
attorneys on 17 October 2019. The same
problem has arisen when the roll was published by the registrar. The
application was not
enrolled because the notice of set down was not
in the court file. The attorneys for the applicants wrote to the
respondents attorneys
on 17 February 2020 and explained what the
problem was.
[40]
The respondents in the replying
affidavit raised a further point
in
limine
that the applicants have
failed to file their heads of argument in time in the interlocutory
application. The respondents denied
deny that their legal team did
not attend court as stated by the applicants.
[41]
It is a sorry state of affairs when
parties litigate on a level which has been manifested in this matter.
On the one side are the
applicants who set the matter down only to
discover that the file keeps on disappearing and that the registrar
has not enrolled
the application. On the other side are the
respondents who by means of the interlocutory application wish to put
an end to the
main application.
[42]
What I do find intriguing, if not
perplexing, is that neither the applicants nor the respondents
approached the court on the days
the matter was set down, with the
notice of set down, as proof that the application had been properly
set down, to enrol the matter
or to argue the costs. It seems that
the parties were quite contend to take a supine approach, when the
application was not enrolled
and unable to proceed on each of the
occasions that the application had been set down.
[43]
The mysterious disappearance of the
court file just when the file is about to be put on the roll is
equally unacceptable. There
is no reason whatsoever why a duplicate
file could not have been opened, (even with the assistance of the
respondents) to be placed
before the court on the date the matter was
set down. It is not unusual to embark upon that route, especially to
avoid wasted costs
to be paid by their respective clients. In any
event, it must have been within the knowledge of both the legal teams
that an application
may only be removed by consent between the
parties or by order of court after it had been set down. It
was,
therefore, imperative for the
parties to approach the court, if the application did not appear on
the court roll, to obtain clarity
or at least get guidance from the
presiding Judge. I find it equally disconcerting that the legal teams
did not engage with each
other, at court, on the days the application
had been set down which is expected from responsible litigants. I am
appalled by the
obvious lack of collegiality displayed by the
parties. It begs the question why the resoondents, who supposedly,
were distressed
by fruitless expenditure on each occasion when the
matter could not proceed, have failed to take steps to set the
application down
themselves to have it dismissed and to obtain the
necessary costs order. The probabilities are strong that the
attorneys for the
parties were quit willing to allow the application
to be dragged out. I find support for my view in the absence of any
correspondence
from the attorney of the respondents to voice their
outrage at the manner the application was handled by the applicants
over the
whole period. It was only after the notice of set down for
the hearing on 15 June 2020 was delivered that the respondents
launched
the interlocutory application without any prior warning.
[44]
It is nevertheless clear that the
applicants did not abandon their application. After each occasion
that the application was not
enrolled, they promptly applied for a
new date and served the notice of set down. The suggestion by the
respondents that the application
had been abandoned, in my view,
smacks of opportunism.
[45]
I will return to the issue of the wasted
costs occasioned on each of these instances, when the costs are
considered.
[46]
I proceed to determine whether the
interlocutory application is indeed interlocutory or if the
interlocutory application is not
an abuse of the process of court.
This court has the inherent power to prevent an abuse and to regulate
and protect its own process.
[19]
In the present matter the purpose of the interlocutory application
must be examined by having regard to the orders the respondents
seek
to be able to discern whether it is truly interlocutory. In
South
Cape Corporation (pty) Ltd v Engineering Management Services (Pty)
Ltd
[20]
it was explained with reference to
interlocutory orders:
"In a wide and general sense the term
"interlocutory refers to all orders pronounced by the Court,
upon matters incidental
to the main dispute, preparatory to, or
during the progress of, the litigation."
[47]
Perhaps it is better, at the outset, to
acknowledge that at common law a purely interlocutory order, on the
one hand, may be corrected,
altered, or set aside by the Judge who
granted it, at any time before final judgment. An order which has
final and definitive effect
on the other hand, even if it may be
interlocutory, in the wide sense, is
res
judicata.
[21]
[48]
The test whether an order is a simple
interlocutory order or not was stated in
Pretoria
Garrison Institutes v Danish Variety Products (Pty) Ltd:
[22]
"...
that a preparatory or procedural order is a simple interlocutory
order a11d therefore not appealable unless it is such
as to 'dispose
of any issue or any portion of the issue in the main action or suit'
or, which amounts, I think, to the same thing,
unless it 'irreparably
anticipates or precludes some of the relief which would or might be
given at the hearing'."
[49]
If the test is applied to the purpose of
the interlocutory application and relief claimed in terms thereof, it
is clear that the
orders are final orders which if granted, will be
susceptible to appeal. The costs order as well as the order in terms
whereof
the applicants are declared vexatious litigants together with
the interdict, are most assuredly, not interlocutory in the main
application. Once the order declaring that the applicants are
vexatious litigants and the interdict had been granted, the orders
would have precluded the court from pronouncing on the merits of the
main application. In addition, the respondents, in my view
have
failed to make out a case in their founding affidavit to declare the
applicants vexatious litigants. The respondents rely
on the
provisions of section 2(1)(b) of Act 3 of 1956 which is a complement
to the common law. In terms of the common law the court
has the
inherent power to strike out claims that are vexatious. Vexatious
must be understood to refer to proceedings that are instituted
without sufficient ground to serve as an annoyance to the
respondents, and include proceedings that are frivolous, and
improper.
[23]
The purpose of Act 3 of 1956 was held by the Constitutional Court in
Beinash and another v Ernest
&
Young and others
[24]
to be:
"This
purpose is "to put a stop to persistent and ungrounded
institution of legal proceedings". The Act does so by
allowing a
court to screen (as opposed to absolutely bar) a "person (who)
has persistently and without any reasonable ground
instituted legal
proceedings in any Court or inferior court". This screening
mechanism is necessary to protect at least two
important interests.
These are the interests of the victims of the vexatious litigant who
have repeatedly been subjected to the
costs, harassment and
embarrassment of unmeritorious litigation; and the public interest
that the functioning of the courts and
the administration of justice
proceed unimpeded by the clog of groundless proceedings."
[50]
To obtain relief the respondents have to
show that the applicants have persistently instituted legal
proceedings and that those
proceedings have been without reasonable
ground.
[25]
[51]
With regard to the first requirement it
was never the case of the respondents that the applicants
"persistently" instituted
proceedings. It is common cause
that only the main application was instituted by the applicants.
True, the application was set
down on various occasions, but it is
still the same application which was instituted in the first place
that is before the court
today. In rel'ltion to the second ground,
this court has held that the main application has been instituted
with reasonable cause
and that it should succeed.
[52]
The point was taken that the application
was abandoned by the applicants. That too cannot be accepted. The
applicants caused a notice
of set down to be served after each
occasion that the case did not make on to the roll. After the notice
of set down for 15 June
2020 was served on the respondents on 21
February 2020, instituted and served the interlocutory application on
3 March 2020. The
applicants never abandoned their application. If
that was the position, the respondents should have set the
application down and
asked that it be dismissed for that reason with
costs, to obtain finality. In the result the interlocutory
application falls to
be dismissed.
[53]
I now return to the question of costs.
The affidavits filed in the interlocutory application shed useful
light on the manner the
parties treated the litigation.
[54]
I have decided to show my disapproval of
the manner the parties conducted themselves in this application. I
think it is fair that
no costs order be made in respect of the main
application. Each party must pay its own costs.
[55]
However, I am of the view that the
interlocutory application, which is a disguised counter-application,
is an abuse of the process
of court. It was misconceived and doomed
to failure from its conception. The respondents must pay the costs of
the interlocutory
application.
ORDER
1.
THE MAIN APPLICATION
(a)
The
first respondent is ordered to make a decision envisaged by section
3(4) of the Limpopo Traditional Leadership and Institutions
Act, Act
6 of 2005 in respect of the application for recognition by the
BALEPYE community dated 16 June 2017, within a period of
one (1)
month from the date of service of this order on the State Attorney
Polokwane.
(b)
Each
party to pay its own costs in respect of the main application.
2.
THE INTERLOCUTORY APPLICATION
(a)
The interlocutory application is
dismissed.
(b)
The respondents are ordered to
pay the costs of the interlocutory application jointly and severally,
the one paying the other to
be absolved.
GC
MULLER
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE
APPEARANCES
1.
For the Applicant (main
application)
: K Maleka
2.
For the
Respondents
: EK Tsatsi SC
3.
For Applicants (Interlocutory
application)
: EK Tsatsi SC
4.
For
Respondents
: PS Hopane
5.
Date of
hearing
: 17 June 2020
6.
Date judgment
delivered
: 25 June 2020
[1]
Act 6 of 2005. Hereinafter "the Limpopo Act".
[2]
The MEC: Department of Cooperative Governance human Resources and
Traditional Affairs. The third respondent is the Ba-Phalaborwa
Local
Municipality. No relief was sought against the third respondent. The
third respondent did not oppose the application and
played no
further part in the proceedings.
[3]
Act 3 of 1956.
[4]
Act 41 of 2003. Hereinafter "the Framework Act". Section
2(1) states: "A community may be recognised as a traditional
community if it-
(a)
is subject to a system of traditional leadership in
terms of that community's customs; and
(b)
observes a system of customary law."
[5]
The application must contain the particulars required and set out in
section 3(2)(a) to (g).
[6]
Section 3(1) of the Limpopo Act.
[7]
Section 3(6) of the Limpopo Act.
[8]
Preamble of the Framework Act and the Preamble of the Limpopo Act.
[9]
" Empowering provision"
means a law, a rule of
common law, customary law, or an agreement, instrument or other
document in terms of which an administrative
action was purportedly
taken;"
[10]
A decision in terms of PAJA means "any decision of an
administrative nature made, proposed to be made, or required to be
made, as the case may be, under an empowering provision.
[11]
Section 239 of the Constitution.
[12]
Democratic Alliance v Ethekwini Municipality
2012 (2) SA 151
(SCA
[13]
Act 3 of 2000. Hereinafter "PAJA." PAJA states
"Administrative action"
means any decision taken,
or any failure to take a decision by-
(a) an organ of state, when-
(i) exercising a power in terms of the Constitution or a
provincial constitution; or
(ii) exercising a public power or performing a public function in
terms of legislation; or
(b) which adversely effects the rights of any person and which has a
direct, external legal effect.
[14]
The respondents at the hearing on 15 June 2020 handed up a replying
affidavit
ex abudanti cautela
if the answering affidavit is
allowed.
[15]
The court was closed on 15 June 2020. Hence the applications were
argued on 17 June 2020.
[16]
Section 34 of the Constitution.
[17]
Cassimjee v Minister of Finance
2014 (3) SA 198
(SCA) par
10-11. The court dealt with an action. There is no reason why the
same principle cannot be applicable to motion proceedings.
[18]
Pangbourne Properties Ltd v Pulse Moving CC and Another
2013
(3) SA 140
(GSJ) par 16-18.
[19]
Section 173 of the Constitution.
[20]
1977 (3) SA 534
(A) 549F.
[21]
South Cape Corporation (Pty) v Engineering Management Services
(Pty) Ltd supra
550H-551A.
[22]
1948 (1) SA 839 (A) 870.
[23]
Fisheries Development Corporation of
SA
Ltd v Jorgensen
and Another; Fisheries Development Corporation of
SA
Ltd v
AWJ Investments (pty) Ltd and Others
1979 (3) SA 1331
0N)
1339E-F,
Bisset and Others v Boland Bank Ltd and Others
1991
(4) SA 603
(D) 6088 -E;
Cohen v Cohen and Another
2003 (1) SA
103
(C) par 15.
[24]
1999 (2) SA 116
(CC) par 15.
[25]
Cohen v Cohen and Another supra
par 17.