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[2017] ZASCA 81
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Mahlangu and Another v Mahlangu and Others (341/2016) [2017] ZASCA 81 (2 June 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 341/2016
In
the matter between:
JOYINA
JIM
MAHLANGU
FIRST APPELLANT
SOKHULUMI
ROYAL COUNCIL
SECOND APPELLANT
and
MKHAMBI
PETROS MAHLANGU
FIRST RESPONDENT
MEC
LOCAL GOVERNMENT AND HOUSING –
GAUTENG
SECOND RESPONDENT
J
B TOLO – CHAIRPERSON OF THE
COMMISSION
ON TRADITIONAL LEADERSHIP
DISPUTES
AND
CLAIMS
THIRD RESPONDENT
Neutral
Citation:
Mahlangu
v Mahlangu
(341/2016)
[2017] ZASCA 81
(2 June 2017).
Coram:
Cachalia, Majiedt,
Petse, Zondi and Mathopo JJA
Heard:
10 May 2017
Delivered:
2
June 2017
Summary:
Appeal: Power of
court of appeal:
Section 16(2)
(a)
(i)
of the
Superior Courts Act 10 of 2013
: Appellate Court empowered to
dismiss an appeal where judgment or order sought would have no
practical effect or result: Discretion
of court: Not an appropriate
case for court to exercise its discretion in favour of determining
merits of the appeal: Appeal dismissed.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Hughes J sitting as court of
first instance):
1
The appeal is dismissed in terms of
s 16(2)
(a)
(i) of the
Superior Courts Act 10 of 2013
.
2
The appellants’ attorneys, Messrs Zehir Omar Attorneys, are
ordered to pay the costs of the appeal
de bonis propriis
.
JUDGMENT
Petse
JA (Cachalia, Majiedt, Zondi and Mathopo JJA concurring):
[1]
In this appeal the parties were, at the outset of the hearing,
required to address argument on the preliminary question of whether
the appeal and any order made thereon would, within the meaning of
s
16(2)
(a)
(i)
of the Superior Courts Act 10 of 2013 (the Act), have any practical
effect or result. The appeal, which is before us with leave
of the
High Court, emanated from a dispute between the first appellant, Mr
Joyina Jim Mahlangu, and the first respondent, Mr Mkhambi
Mahlangu,
as to who between them was rightfully the senior traditional leader
of the Sokhulumi community of the AmaNdebele tribe.
It bears mention
that since the granting of leave to appeal the first appellant has
died. But for ease of reference I shall still
refer to the first
appellant in this judgment as such.
[2]
The appeal lies against a judgment of the Gauteng Division of the
High Court, Pretoria (Hughes J) in terms of which the review
application instituted by the present appellants against the
respondents was dismissed with costs. The appellants (Mr Joyina Jim
Mahlangu and the Sokhulumi Royal Council as first and second
appellants respectively), inter alia, sought the following relief
in
part B of their notice of motion:
‘
(a)
that the first [appellant] be declared … to have been
correctly appointed as the
senior traditional leader of the Sokhulumi
community;
(b)
setting aside the decision of the second and third respondents
removing the first
[appellant] as the senior traditional leader of
the Sokhulumi community;
(c)
interdicting the first respondent from interfering in the
administration of
the Sokhulumi community or frustrating the
first [appellant] in discharging his duties.’
Five
days before the hearing of this appeal on 5 May 2017, t
he
appellants applied for an amendment to the notice of motion. I deal
with this aspect later.
[3]
The first respondent was appointed as the senior traditional leader
of the Sokhulumi community by the second respondent pursuant
to a
determination made by the third respondent to the effect that he was
entitled to hold that position. The second respondent
is the Member
of the Executive Council responsible for the Department of Local
Government and Housing of the Gauteng Province.
[4]
The third respondent, Mr J B Tolo, was the chairperson of the
Commission on Traditional Leadership Disputes and Claims established
in terms of the
Traditional Leadership and Governance Framework Act
41 of 2003
. The Commission was charged with the task of, inter alia,
investigating and determining disputes and claims relating to
traditional
leadership of the Sokhulumi community. In the execution
of its mandate, the Commission investigated and determined the
competing
claims by the first appellant and the first respondent to
the leadership of the Sokhulumi community.
[5]
In the event the Commission decided the issue in favour of the first
respondent. Pursuant to this determination the second respondent
informed the first appellant by letter dated 10 October 2012 that his
acting appointment as the senior traditional leader of the
Sokhulumi
community was rescinded with effect from 30 November 2012. The first
respondent was then appointed in his stead.
[6]
The review application came before Hughes J who dismissed it with
costs. The High Court subsequently granted the appellants
leave to
appeal to this court.
[7]
The first appellant passed away on 18 April 2016, a few days before
the notice of appeal was lodged in this court. The respondents
were
made aware of this by the appellants’ attorneys on 18 November
2016, a few days after the appellants’ heads of
argument were
delivered.
[8]
Following the death of the first appellant, the respondents (barring
the second respondent who never entered the fray) made
written
submissions in support of an order dismissing the appeal, on the
ground that the decision sought on appeal would have no
practical
effect or result within the meaning of s 16(2)
(a)
(i)
of the Act. These submissions, to which I shall return later, are
opposed by the appellants.
[9]
In the light of this turn of events, the Registrar of this Court
wrote to the parties’ attorneys on 27 February 2017 and
enquired whether the appeal would be pursued.
[1]
The response received from the appellants’ attorneys was to the
effect that the appeal would be prosecuted to its final
determination.
In
support of their resolve to argue the merits of the appeal the
appellants, inter alia, said that the first respondent was previously
removed from office on account of misconduct; that if his
reappointment is declared unlawful the community would, in terms of
their customs, elect a new leader to succeed the first appellant.
[10]
At this juncture it is necessary to set out the following brief
factual background. The Sokhulumi community was initially a
traditional community under the then KwaNdebele self-governing
territory. The first respondent was the senior traditional leader.
Following allegations of misconduct, he was removed as the
traditional leader, after a judicial enquiry was held into his
fitness
to hold office. In January 1993 the first appellant was
appointed by the Chief Minister as acting traditional leader of the
Sokhulumi
community. During May 2011 the Secretariat of the
Commission on Traditional Leadership Disputes and Claims wrote to the
first appellant
to inform him that the first respondent was claiming
that he was the rightful traditional leader of the Sokhulumi
community. The
first appellant was consequently invited to appear
before the Commission to answer to the claim. Although the first
appellant had
initially resisted the Commission’s request to
attend the hearing, he later relented and sent representatives
(including
legal representatives albeit acting in an advisory
capacity only) to represent him at the hearing. At the hearing, his
daughter
made representations that the Commission, inter alia, had no
jurisdiction over the dispute.
[11]
As already mentioned, the Commission determined the dispute in favour
of the first respondent. The second respondent in turn
rescinded the
first appellant’s acting appointment and appointed the first
respondent in his stead.
[2]
Aggrieved by the Commission’s determination and the second
respondent’s revocation of his acting appointment, the first
appellant took those decisions on review in the High Court. It is
necessary to emphasise that what the first appellant sought in
the
review application was in essence an order reinstating him as the
acting traditional leader of the Sokhulumi community. And
the
ancillary relief claimed was predicated upon him succeeding in the
principal relief sought.
[12]
As indicated earlier, at the hearing of the appeal, counsel were at
the outset called upon, having been forewarned as required
in terms
of s 16(2)
(b)
of
the Act, to address argument on the question whether in light of the
first appellant’s demise the appeal had not become
moot and
whether any order made would have any practical effect or result
within the meaning of s 16(2)
(a)
(i)
of the Act.
[13]
Section 16(2)
(a)
(i) of the Act reads:
‘
When
at the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.’
Section
16(2)
(a)
(i)
was modelled on s 21A of the Supreme Court Act 59 of 1959
[3]
(the old Act). In turn, s 21A(1) of the old Act provided:
‘
When
at the hearing of any civil appeal to the Appellate Division or any
Provincial or Local Division of the Supreme Court the issues
are of
such a nature that the judgment or order sought will have no
practical effect or result, the appeal may be dismissed on
this
ground alone.’
[14]
Section 21A of the old Act was considered in several decisions of
this Court. Thus, much assistance can be derived from those
decisions. In
Coin Security Group (Pty) Ltd v SA National Union
for Security Officers & others
[2000] ZASCA 137
;
2001 (2) SA 872
(SCA) this
Court said:
‘
[7]
The purpose and effect of s 21A has been explained in the judgment of
Olivier JA in the case of
Premier,
Provinsie Mpumalanga, en 'n Ander v Groblersdalse Stadsraad
1998 (2) SA 1136
(SCA). As is there stated the section is a
reformulation of principles previously adopted in our Courts in
relation to appeals
involving what were called abstract, academic or
hypothetical questions. The principle is one of long standing.
.
. .
This
is a principle which is common also to other systems - where the
doctrine of binding precedent is followed. It has particular
application in Courts of appeal. The attitude of the House of Lords
is illustrative of this. What that Court has held is that it
is an
essential quality of an appeal (such as may be disposed of by it)
that there should exist between the parties to the appeal
a matter
“in actual controversy which (the Court) undertakes to decide
as a living issue”. See
Sun
Life Assurance Co of Canada v Jervis
[1944] 1 All ER 469
(HL) at 471A - B. This phrase accurately states
the standpoint of our Courts. It is a principle consistently adopted
by this Court
and the other Courts in the Republic.’
[15]
In
Radio Pretoria v Chairman, Independent Communications Authority
of South Africa and Another
2005 (1) SA 47
(SCA) Navsa JA said
the following (para 41):
‘
Courts
of appeal often have to deal with congested rolls. They do not give
advice gratuitously. They decide real disputes and do
not speculate
or theorise . . .’.
In
effect what the parties are seeking is legal advice from this Court.
But as Innes CJ observed in
Geldenhuys & Neethling v Beuthin
1918 AD 426
at 441:
“
After
all, Courts of Law exist for the settlement of concrete controversies
and actual infringements of rights, not to pronounce
upon abstract
questions, or to advise upon differing contentions, however
important.”’
[16]
Accordingly, it goes without saying that an appellate court will not
concern itself with disputes that no longer exist between
the parties
the determination of which will have no practical effect. And I did
not understand the attorney appearing for the appellants
to contend
that the present is an appropriate case in which this Court can, in
the exercise of any discretion it might have, consider
the merits of
the appeal even absent a live issue between the parties.
[4]
Furthermore, there was no suggestion that this case raised any
discrete legal issue of public importance.
[17]
The attorney representing the appellants contended that the issue is
not moot because the second appellant still has an interest
in the
outcome of the appeal. But this contention has no merit for
essentially three reasons. First, the interest of the second
appellant in the relief sought, if any, is nowhere articulated on the
papers. Second, and of fundamental importance, there is no
evidence
regarding the legal standing of the second appellant and whether it
has the capacity to sue or be sued. Third, there is
no averment,
still less proof, that the second appellant was authorised to be
party to these proceedings. The problem is compounded
by the fact
that in his founding affidavit the first appellant appears to believe
that both the second appellant and himself are
but one person for he
averred, unintelligibly, that: ‘I am an adult male person, (the
first and second appellant) in this
matter’.
[18]
This conclusion brings me to the question of costs of the appeal.
Counsel for the first and third respondents both submitted
that the
costs of the appeal should be borne by the appellants’
attorneys
de
bonis propiis
.
Counsel contended that the respondents were compelled to come to
court to oppose the appeal because the mootness point had not
been
conceded.
[19]
In response, the attorney for the appellants submitted that there
would be no basis to award the costs of the appeal against
the
appellants’ attorneys
de
bonis propiis
.
This was so, so the argument went, because the attorneys were
instructed by the first appellant’s brother to pursue the
appeal and were therefore duty-bound to execute those instructions.
In the alternative, he submitted that the costs should be for
the
account of the person (this being a reference to the first
appellant’s brother) who had given instructions for the appeal
to be pursued. I do not agree. The first appellant’s brother
was not a party to these proceedings. The appellant’s
attorneys
came to this court to argue the appeal, despite the death of the
first appellant when it was clear that the appeal was
moot.
[20]
Having been forewarned that following the death of the first
appellant, the appeal had then become moot, they persisted in
prosecuting the appeal. Rather than pause for reflection they were
undaunted and heedlessly sought to pursue the appeal to its
conclusion. To that end they filed supplementary heads of argument
and a notice of intention to amend the appellants’ notice
of
motion on which reliance before us was disavowed. All of these steps
were undertaken in the vain attempt to salvage an appeal
that could
not be salvaged as the cause of action, which is not transmissible,
was extinguished by the death of the first appellant.
(See
Minister
of Justice and Correctional Services v Estate Stransham-Ford
(531/2015)
2016 ZASCA 197
(6 December 2016) paras 19-20.)
[21]
To my mind, all these factors, considered cumulatively, demonstrate
that the appellants’ attorneys were remiss in failing
to
appreciate that it would be futile to prosecute the appeal as the
dispute had become academic. Even the warning by this Court
when it
raised the issue of mootness with the parties some seven weeks before
the date of the hearing, fell on deaf ears. In these
circumstances
this Court retains its inherent discretion to make such an order as
to costs as it considers appropriate. (Compare
Tropical
(Commercial and Industrial) Ltd v Plywood Products Ltd
1956
(1) SA 339
(A) at 346A-B;
Kett
v Afro Adventures (Pty) Ltd & another
1997
(1) SA 62
(A).)
[22]
Before concluding, it is necessary to say something about the events
that occurred subsequent to the hearing of this appeal.
A day after
the hearing of the appeal, members of the bench received a letter
from the appellants’ attorneys requesting that
the delivery of
our judgment be held in abeyance. This, so it was stated, was to
enable the appellants to file additional papers
in relation to ‘the
authority of the second appellant to proceed with the appeal’.
The Registrar of this Court replied,
at our behest, informing the
appellants’ attorneys that their request was declined.
[23]
Undeterred, the appellants’ attorneys filed a new notice of
motion three days later in which 12 new applicants sought
leave to
intervene as appellants in this case. I do not propose setting out in
any detail the basis upon which this order is being
sought. Suffice
it to say that the applicants assert that they collectively have a
direct and substantial interest in the present
appeal. Apart from
contending that they are either members of the Sokhulumi Royal Family
or members of the Sokhulumi community,
the basis of their alleged
interest in this appeal is nowhere clearly articulated. It will be
recalled that the first appellant
challenged his removal as acting
traditional leader of the Sokhulumi community. But it bears
emphasising that the first appellant’s
right to continue as
acting traditional leader, assuming that he had such a right, inhered
in him and no one else. Consequently,
his death meant that the
lis
between
him and the first respondent came to an end.
[24]
Moreover, as Nugent JA observed in
Allpay
Consolidated Investment Holdings
:
[5]
‘
It
is the practice of this Court that parties may not file new material
after the hearing of an appeal without the leave of the
court. There
must be finality in litigation and finality comes for the litigants
once the appeal has been heard.’
That
much was conveyed to the appellants’ attorneys by the Registrar
of this Court as mentioned earlier. The fact that they
still went
ahead to file additional papers in the face of this indication from
this Court is to be deprecated.
[25]
In the result the following order is made:
1
The appeal is dismissed in terms of
s 16(2)
(a)
(i) of the
Superior Courts Act 10 of 2013
.
2
The appellants’ attorneys, Messrs Zehir Omar Attorneys, are
ordered to pay the costs of the appeal
de
bonis propriis
.
____________________
X
M PETSE
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant:
Z Omar
Instructed by:
Zehir Omar Attorneys, Springs
c/o EG Cooper
Attorneys, Bloemfontein
For
the First Respondent:
S J van Rensburg
Instructed by:
Venn & Muller Attorneys, Pretoria
c/o Webbers Attorneys, Bloemfontein
For
the Third Respondent:
Z Z Matebese (with M X Shibe)
Instructed by:
Nonxuba Attorneys, Johannesburg
c/o Webbers
Attorneys, Bloemfontein
[1]
The parties were requested: (i) to
confirm whether it is correct that the first appellant died on 18
April 2016; (ii) if this
is correct, to advise on what basis it is
proposed to continue with the appeal, in view of the fact that the
principal purpose
of the application was to have the deceased
appointed as senior traditional leader of the Sokhulumi community
and this can no
longer occur.
[2]
The first
respondent’s appointment was published in a provincial notice
for the province of Gauteng, ‘Publication
of the name of
Senior Traditional Leader of Amandebele Ndzudza Sokhulumi,
Provincial
Notice
297, 4 February 2013.’
[3]
The Supreme Court
Act was repealed in terms of
s 55(1)
(a)
of the
Superior Courts
Act 10 of 2013
.
[4]
Compare:
Qoboshiyane
NO & others v Avusa Publishing Eastern Cape (Pty) Ltd &
others
[2012] ZASCA 166
;
2013 (3) SA 315
(SCA) para 5.
[5]
Allpay Consolidated Investment
Holdings (Pty) Ltd & others v Chief Executive Officer, South
African Social Security Agency
& others
[2013]
ZASCA 29
;
2013 (4) SA 557
(SCA) para 7.