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[2016] ZAECMHC 13
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Mandela v Executors Estate Late Nelson Rolihlahla Mandela and Others (2938/2014) [2016] ZAECMHC 13; [2016] 2 All SA 833 (ECM) (7 April 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
Case
No: 2938/2014
In
the matter between:-
NOMZAMO
WINIFRED ZANYIWE MADIKIZELA
MANDELA
Applicant
and
THE
EXECUTORS ESTATE LATE NELSON
ROLIHLAHLA
MANDELA
1
st
Respondent
THE
REGISTRAR OF DEEDS,
MTHATHA
2
nd
Respondent
MINISTER
OF LAND AFFAIRS FOR THE REPUBLIC
OF
SOUTH AFRICA
3
rd
Respondent
THE
PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA
4
th
Respondent
THE
NELSON MANDELA FAMILY TRUST
5
th
Respondent
THE
MASTER FOR THE HIGH COURT,
SOUTH
GAUTENG
6
th
Respondent
GRACA
MACHEL
7
th
Respondent
EBOTWE
TRIBAL AUTHORITY
8
th
Respondent
ZWELIDUMILE
MBANDE
9
th
Respondent
CORAM:
MAKGOBA,
JP
et
VAN DER MERWE
et
TEFFO, JJ
JUDGMENT
BY:
THE
COURT
HEARD
ON:
29
FEBRUARY 2016 and 1 MARCH 2016
DELIVERED
ON:
07
APRIL 2016
[1]
This application concerns the rights to the land described in Deed of
Grant G7307/1999 as:
“
Lot
KWA MADIBA (portion of A. A. No. 20 called QUNU) situate in the
Administrative District of Umtata Province of the Eastern Cape
In
EXTENT NINE SIX COMMA EIGHT NINE FIVE NINE (96,8959) HECTARE”
(the
property).
The
property is situated at Qunu, the birthplace of the late former
President of the Republic of South Africa, Mr Nelson Rolihlahla
Mandela. On 16 November 1997 the third respondent, the Minister
of Land Affairs for the RSA (the Minister) took a decision
to donate
the property to Mr Mandela (the Minister’s decision). The
Minister acted on recommendation of the Director-General
of the
Department of Land Affairs and in terms of the
State Land Disposal
Act 48 of 1961
. As a result, the second respondent, the
Registrar of Deeds, Mthatha, registered the property in the name of
Mr Mandela in
terms of Deed of Grant G7307/1999.
[2]
The applicant, Mrs Nomzamo Winifred Zanyiwe Madikizela Mandela, in
essence seeks an order reviewing and setting aside the Minister’s
decision. It is not necessary to detail the further prayers
contained in the amended notice of motion. It suffices
to say
that they are for a relief that are depended on or consequential to
the review and setting aside of the Minister’s
decision.
[3]
The application is opposed by the first respondent, the executors of
the estate of Mr Mandela (the executors). The executors
are
Justice Dikgang Moseneke, Judge President Themba Sangoni and Advocate
George Bizos SC. The application is also opposed
by the
Minister. The eighth respondent, the Ebotwe Tribal Authority,
and the ninth respondent, Mr Zwelidumile Mbande, were
represented
before us, but did not oppose the application. None of the
other respondents filed papers or participated in
the hearing of the
matter.
[4]
It is firstly necessary to determine the boundaries of the evidence
on which the application must be determined. Two matters
must
be considered. First, the executors asked that certain
documents constituting hearsay evidence be admitted in terms
of
section 3(1)(c)
of the
Law of Evidence Amendment Act 45 of 1988
.
Secondly, on 1 February 2016, the Minister filed an application for
the admission of yet a further set of affidavits.
As we will
indicate, the case for Mrs Mandela entails consideration of events
that took place during the period from 1989 to 1997.
The
admissibility of the evidence must be determined against this
background.
[5]
Only two documents that the executors asked to be admitted in terms
of Act 45 of 1988, need to be considered. They are
an unsigned
affidavit of Mr Mandela and a press statement regarding events that
took place in Qunu during December 1955.
[6]
Advocate Bizos, who deposed to the answering affidavit on behalf of
the executors, had attended the hearing of the divorce proceedings
between Mr and Mrs Mandela. He stated that the affidavit of Mr
Mandela had been filed on 15 March 1996, in opposition to
an
application by Mrs Mandela for postponement of the divorce
proceedings. He said that although the signed version of Mr
Mandela’s affidavit could not be located, he was able to
confirm the authenticity thereof, as well as that Mrs Mandela filed
a
replying affidavit thereto. Mrs Mandela’s bare denial
hereof did not create a real or genuine dispute of facts.
We
accept the evidence regarding the circumstances and authenticity of
Mr Mandela’s affidavit. The relevance of the
affidavit
lies in its description of the state of the marital relationship
between Mr and Mrs Mandela and the issues in their divorce
proceedings.
[7]
The press statement read:
“
PRESIDENT
MANDELA DONATES R150.000.00 TO THE QUNU COMMUNITY
During
December 1995, while President NELSON MANDELA was holidaying at his
home at Qunu Village just outside UMTATA in the Eastern
Cape, local
residents and the E-BHOTWE Tribal Authority, all led by King
BUYELEKHAYA ZWELIBANZI DALINDYEBO and local chiefs, decided
to extend
the extent of the President’s rural allotment in the village.
The decision was reached as a token of expressing
the Thembu tribe’s
appreciation for the President’s service to the people of South
Africa, the liberation struggle
and personal sacrifice and suffering.
It was felt that he should have learned sufficient to enable him to
consider spending his
retirement days at his rural home and be able
to practice farming.
In
accepting the offer President MANDELA responded by donating a sum of
R150 000,00 to the residents of QUNU to be utilised
for a
community project. He further nominated Messrs BANTU HOLOMISA,
DUMISA NTSEBEZA and TEMBA SANGONI to set up a committee
incorporating
the chieftains of the area and a representative of King DALINDYEBO to
monitor the use of the funds. The residents
themselves,
however, will decide on the project or projects to be undertaken.”
Although
the source of the press statement is unknown, it is not disputed that
it was a publically announced contemporary statement
in respect of
events that were uncontentious at the time. Thus there appears
to have been no motive or reason for the making
of a false
statement. And an unbiased contemporary press statement will
generally be more reliable than human recollection
after the expiry
of a period of some 20 years.
[8]
Taking into account the factors set out in section 3(1)(c)(i)-(vi) of
Act 45 of 1998, we are of the opinion that the affidavit
and press
statement should be admitted in the interest of justice.
[9]
The factors relevant to the admission of further affidavits in motion
proceedings are the reasons for the late tendering of
the affidavits,
the relevance and materiality of the contents thereof and the
question of prejudice to the other party or parties.
As to the
reasons for the late tendering of the affidavits, the Minister
pointed to the difficulties in finding witnesses in respect
of
matters that happened many years before. The contents of the
additional affidavits are relevant and may be material.
Although not abandoning her objection to the admission of the
affidavits, Mrs Mandela proactively filed answering affidavits to
the
additional affidavits. The admission of these affidavits can
cause no real prejudice to Mrs Mandela. In the circumstances
they are admitted.
[10]
The relevant factual background of the matter can now be set out.
During 1958 Mr and Mrs Mandela were married in terms
of customary
law. Lobola of 10 cattle was paid. Thereafter, on 14 June
1958, they entered into a civil marriage.
It is common cause
that that marriage was out of community of property. During
1964 Mr Mandela was sentenced to life imprisonment.
He was
eventually released from prison during 1990. Upon his release
he rejoined his wife. He also visited Qunu and
decided to build
his home there. He resolved to build a replica of the house in
which he stayed during the latter part of
his incarceration at Victor
Verster prison.
[11]
However, the marriage relationship between Mr and Mrs Mandela
deteriorated. During April 1992 Mr Mandela finally decided
to
put an end to their marriage. This was publicly announced at a
press conference held on 13 April 1992. Thereafter
no marital
relationship or co-habitation existed between them. Mrs Mandela
defended the divorce action instituted by her
husband. She also
filed a counterclaim for the transfer of half of the estate of Mr
Mandela in terms of the provisions of
section 7
of the
Divorce Act 70
of 1979
. The marriage was ended by decree of divorce made on 19
March 1996. The counterclaim was dismissed.
[12]
In meantime, during the period from 1993 to 1995, the house was built
on a site measuring approximately 9 hectares that now
forms part of
the property (the original site). On 5 March 1995 official
permission to occupy the original site as from 2
January 1995, was
issued to Mr Mandela by the former government of the Republic of
Transkei. On 5 January 1996 Chief Mtirara
wrote to the
magistrate of Mthatha stating that the extension of the original site
of Mr Mandela from approximately 9 hectares
to approximately 101,5
hectares, carried the approval of the relevant tribal authority.
There can be no doubt that at all
times during and after the building
of the house, Mr Mandela regarded it as his home. In due course
Mr Mandela married Ms
Graca Machel, the seventh respondent. Mr
Mandela passed away on 5 December 2013. In paragraph 4.5.3 of
his will he
bequeathed the property to the NRM Family Trust in the
following terms:
“
I
bequeath the Qunu Property and the movable assets of my estate in or
on it at the time of my death, to THE NRM FAMILY TRUST.
It is
my wish that the trustees of THE NRM FAMILY TRUST administer the Qunu
Property for the benefit of the MANDELA family and
my third wife and
her two children, MALENGANE MACHEL and JOSINA MACHEL. The Qunu
Property should be used by my family in
perpetuity in order to
preserve the unity of the MANDELA family.”
[13]
It is not disputed that the property was State land as defined in the
State Land Disposal Act. Proclamation
67 in
Government
Gazette No. 16511 of 7 July 1995
declared the
State Land Disposal Act applicable
to
inter
alia
the former territory of Transkei. This proclamation also
amended the Act in so far as it was made applicable to the former
territory of Transkei by defining “Minister” as the
Minister of Land Affairs in the national government.
Section
2(1)
of the
State Land Disposal Act provides
that subject to the
provisions of subsection (2) and (3), the President may, on such
terms and conditions as he may deem fit, sell,
exchange, donate or
lease any State land on behalf of the State. In terms of
section 6
the President may assign this power to the Minister.
Mrs Mandela did not aver that the power in terms of
Section 2(1)
had
not as a fact been assigned to the Minister and did not dispute the
evidence of the Minister that it had been so assigned.
[14]
Mrs Mandela’s case on the merits as developed in argument
before us, stripped to its essentials, was that the Minister’s
decision was unlawful as it had been taken in disregard of her rights
to the property. Her case was that she obtained an
informal
right of occupation and use of the original site, the subsequently
extended site and the property, because the original
site had been
allocated to her during 1989 by the King and chiefs of the AbaThembu
and the community of Qunu. In any event,
so it was averred, she
retained the right of occupation and use of the property under
customary law, because of the continued existence
of the customary
marriage, despite the civil marriage and the dissolution thereof.
According to Mrs Mandela her customary
marriage to Mr Mandela was
never ended and continued to exist until his death. Finally,
her case was that the consent of
the community of Qunu to the
donation of the property to Mr Mandela was a statutory requirement
and that no such consent had been
given.
[15]
As we have said, the impugned decision was taken on 16 November
1997. Mrs Mandela deposed to the founding affidavit herein
nearly 17 years after the Minister’s decision. The
executors and the Minister argued that there had been an unreasonable
delay and that for that reason, we should refuse to entertain the
application. Whether the application should be dismissed
on
this ground, is the question that we now turn to.
[16]
There is a longstanding rule of our common law that proceedings for
judicial review of the decisions of public bodies must
be instituted
without undue delay. If there has been an unreasonable delay, a
court may in the exercise of its inherent power
to regulate its own
proceedings, refuse to determine the matter. In this manner an
invalid decision may, in a sense, be validated.
The reasons for
the rule are said to be twofold. First, it is desirable and
important that finality should be reached within
a reasonable time in
relation to judicial and administrative decisions or acts. It
can be contrary to the administration
of justice and the public
interest to allow such decisions or acts to be set aside after an
unreasonably long time has elapsed.
The second reason is the
inherent potential for prejudice involved in failure to bring a
review within a reasonable time, not only
to a party affected by the
decision but also to the effective functioning of the public body in
question and to third parties who
may have arranged their affairs in
accordance with the decision. For this reason proof of actual
prejudice to the respondent
is not a precondition for refusing to
entertain review proceedings by reason of undue delay. The
extent of the prejudice
is, however, a relevant consideration and may
be decisive when the delay has been relatively slight. The
application of the
rule requires answering of two questions, namely:
(a)
Was there an unreasonable delay?
(b)
If so, should the unreasonable delay be condoned?
Although
the first question implies a value judgment, it entails a factual
enquiry. The second question involves the exercise
of a
judicial discretion. Both questions must of course be answered
in light of the facts and circumstances of the particular
case.
(See
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) at 38H – 42D;
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en ‘n
Ander
1986 (2) SA 57
(A) at 86A-G;
Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005
(2) SA 302
(SCA) paras [46] – [48];
Gqwetha
v Transkei Development Corporation Limited
[2006] 3 All SA (245) paras [22] – [24].)
[17]
Whether there has been an unreasonable delay depends largely on the
extent of the delay and the acceptability of the explanation
tendered, if any. In this regard it may sometimes not be
sufficient to simply claim ignorance of the decision. In
Associated
Institutions Pension Fund
Brand
JA said the following at para [51]:
“
In
my view there is indeed a duty on applicants not to take an
indifferent attitude but rather to take all reasonable steps
available
to them to investigate the reviewability of administrative
decisions adversely affecting them as soon as they are aware of the
decision. These considerations are, in my view, also reflected in
both
s 7(1)
of PAJA and in the provisions of
s 12(3)
of the
Prescription Act 68 of 1969
. Whether the applicants in a particular
case have taken all reasonable steps available to them in compliance
with this duty, will
depend on the facts and circumstances of each
case. (Compare Drennan Maud & Partners v Pennington Town Board
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA).)”
In
our view the same considerations are applicable to the question of
knowledge of the decision. It should be legally insufficient
for a litigant to rely on ignorance of a decision in circumstances
where the existence of the decision would have become known
by the
taking for reasonable steps in the circumstances. The court
should therefore determine whether the existence of a
decision would
have been uncovered by the taking of reasonable steps in the
particular circumstances and the period of delay should
be reckoned
from that date, event or period.
[18]
The factors relevant to the exercise of the discretion to
nevertheless overlook an unreasonable delay, include the extent of
the delay, the explanation therefor, any prejudice to the respondent
and/or third parties and the nature of the impugned decision.
[19]
In
Wolgroeiers
the
appellant applied for subdivision of an erf. The application
was granted by the Administrator of the Cape Province,
inter
alia
subject to the condition that the appellant pay an amount equal to 5%
of the sale price of the subdivided erven to the municipality
of Cape
Town. The appellant paid the amount to the municipality.
Approximately 3½ years after the decision of
the
Administrator, the appellant launched an application for the review
and setting aside of the said condition only and for repayment
of the
said amount by the municipality.
[20]
The court found that the appellant had unreasonably delayed the
institution of the review. The court also refused to
exercise
its discretion to overlook the unreasonable delay, even though it
found that the review would have succeeded. In
determining this
issue, Miller JA said (at 43H) that it was relevant to consider the
consequences of setting aside the decision
to impose the condition.
He said that if the imposition of the condition were to be said
aside, the matter would presumably
be referred back to the
Administrator for reconsideration. He stated that the
possibility that the same condition could be
re-imposed, could not be
excluded. Miller JA also said that even if the condition were
to be set aside, it was as a matter
of law by no means clear that the
claim for repayment against the municipality would succeed.
[21]
Wolgroeiers
therefore provides clear authority that the prospect of anything
meaningful being achieved by the applicant in the event of the
review
application succeeding, is a relevant consideration in the exercise
of the discretion to condone the unreasonable delay
of review
proceedings.
[22]
In
Gqwetha
there was a divergence of opinion on the question whether, apart from
the consideration mentioned in
Wolgroeiers
,
the prospect of success in the review application itself was a
relevant consideration. Mpati DP, with whom Farlam JA
concurred,
held at paras [18] and [19] that it clearly was.
Nugent JA, with whom Navsa JA and Van Heerden JA concurred, was of
the opinion
at paras [34] and [35] that the prospect of the
challenged decision being set aside is not a material consideration
in the absence
of an evaluation of what the consequences of setting
the decision aside are likely to be. However, the issue has
since been
settled by the Constitutional Court. In
Khumalo
and Another v MEC for Education, KwaZulu-Natal
2014 (5) SA 579
(CC) the following was said on behalf of the majority
at para [57]:
“
An
additional consideration in overlooking an unreasonable delay lies in
the nature of the impugned decision. In my view this requires
analysing the impugned decision within the legal challenge made
against it and considering the merits of that challenge.”
(See
also
Beweging
vir Christelik–Volkseie Onderwys and Others v Minister of
Education and Others
[2012] 2 All SA 462
(SCA) at para [47])
[23]
Where the Promotion of Administrative Justice Act 3 of 2000 (PAJA) is
applicable, the common law delay rule find its basis
in PAJA.
(See
Opposition
to Urban Tolling Alliance v South African National Roads Agency
Limited
[2013] 4 All SA 639
(SCA) paras [23] – [26];
Beweging
vir Christelik-Volkseie Onderwys and Others
para [46]). Section 7(1) of PAJA provides:
“
(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.”
Section
9(1) provides that the period of 180 days referred to in section 7
may be extended for a fixed period by agreement between
the parties
or by a court on application by the person concerned. In terms
of section 9(2) the court may grant an application
in terms of
section 9(1) where the interests of justice so require. In
Opposition
to Urban Tolling Alliance
at para [26] the court referred to the two-stage enquiry at common
law and proceeded to explain:
“
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 interest 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.”
[24]
On Mrs Mandela’s case, the Minister’s decision falls
within the definition of “administrative action”
in
PAJA. On this basis it was a decision by a person when
performing a public function in terms of an empowering provision
which adversely affected the rights of a person or persons and which
had direct, external legal effect. The Minister’s
decision was taken after the advent of the final Constitution but
before the commencement of PAJA. For this reason the right
to
review the Minister’s decision stemmed from section 33 of the
Constitution (See
Associated
Institutions Pension Fund
at para [36]). But in our view PAJA is a applicable to
proceedings for review of administrative action as defined therein,
launched after its commencement. It should be added that in
this matter it makes little or no difference whether the question
of
unreasonable delay is decided in terms of the common law or PAJA.
[25]
The first question is whether as a fact, Mrs Mandela unreasonably
delayed the launch of these proceedings. Mrs Mandela
stated
that she only became aware of the registration of the property in the
name of Mr Mandela and therefore of the Minister’s
decision,
after the death of Mr Mandela, when she became aware of the contents
of his will. This was not denied by the executors
or the
Minister. But, as we have said, that is not the end of the
enquiry. The question is when a reasonable person
in shoes of
Mrs Mandela would have acquired knowledge of the Minister’s
decision.
[26]
It is undisputed that during April 1992 Mr Mandela had finally
decided to put an end to the marital relationship with Mrs Mandela.
It is also undisputed that by April 1992 the marital relationship
between Mr and Mrs Mandela had irretrievably broken down.
It is
common cause that the house on the property was built during the
period from 1993 to 1995. Mrs Mandela’s statement
that “I
spend (sic) a lot of energy in the acquisition, construction and
building of the Traditional home at Qunu”
and that “I
contributed immensely to the building of our homestead at Qunu”,
are disingenuous. The house was
built for Mr Mandela according
to his wishes and the property was thereafter used by him as his home
to the exclusion of any right
of Mrs Mandela. This denial of
her rights would have been clear to any reasonable person in the
shoes of Mrs Mandela.
The reasonable person in the position of
Mrs Mandela would have regarded recognition of her rights to the
property as a critical
issue in the divorce proceedings. Such
reasonable person would have asserted her rights to the property
during the divorce
proceedings. Mrs Mandela rightly did not complain
of lack of resources or of professional assistance. Assertion
of the right
to the property during the divorce proceedings would no
doubt have uncovered the steps taken to donate the land to Mr
Mandela.
A reasonable person would have continued to follow up
on the information indicating a disregard of her rights. It
follows
that the reasonable person would have been aware of the
Minister’s decision virtually as soon as it was taken. As
the
property was donated, the reason for the decision is not
material.
[27]
In our judgment the delay must be calculated from the end of 1997.
This is a delay of nearly 17 years, many times more
than the period
of 180 days. Although each case must be decided on its own
facts, the finding in
Camps
Bay Ratepayers’ and Residents’ Association and Another v
Harrison and Another
2011 (4) SA 42
(CC) at para [54] that a delay of approximately 3
years was clearly inordinate, places the present delay in
perspective.
It follows from what we have said in the previous
paragraph, that there is no acceptable explanation for the delay.
We find
that there has been an unreasonable delay in launching this
application.
[28]
Should the delay be condoned? The period of the delay was
excessive and was not satisfactorily explained. The prejudice
to the executors and the beneficiaries of the will is manifest.
Because of the delay they were unable to present the evidence
of a
material witness, namely Mr Mandela. At no time during the
lifetime of Mr Mandela did Mrs Mandela lay claim to the property.
He arranged his affairs and made the dispositions in his will on the
acceptance that he had unencumbered ownership of the property.
The property constituted a major financial and emotional asset in his
estate. To overturn this position would be grossly
prejudicial.
[29]
We accept that the Minister’s decision would have been unlawful
if it was taken in disregard of the rights of Mrs Mandela.
In
such a case the decision would have been contrary to section 33 of
the Constitution and
section 2(1)
of the
Interim Protection of
Informal Land Rights Act 31 of 1996
, which provides that no person
may be deprived of any informal right to land without his or her
consent. In the present context
the prospects of showing the
existence of the alleged rights of Mrs Mandela must now be
considered.
[30]
Mrs Mandela said that at a meeting held during 1989, the original
site was allocated to her by the King of the AbaThembu, Buyelekhaya
Dalindyebo and several chiefs, subject to the approval of the
community of Qunu. She said that some days later a community
meeting took place during which the original site was allocated to
her. This is supported by the affidavits of several persons,
including King Buyelekhaya Dalindyebo. Most of these affidavits
are however in rather vague terms. On the other hand
there is
evidence that King Buyelekhaya Dalindyebo was in exile until 1990 and
that he in fact presided over the allocation of
the extended site to
Mr Mandela during 1995. This is stated by General Bantubonke
Holomisa and Chief Mtirara and supported
by the press statement.
The latter evidence cannot be described as farfetched or clearly
untenable. It goes without
saying that Mrs Mandela would have
to show that the original site and the extended site were allocated
to her in personal capacity
and not in her capacity as representative
or wife of Mr Mandela. Whether an allocation of land to a
married woman in her
personal capacity was possible in under
customary law, is open to question. Taking into account that
the merits of the application
will have to be decided on the version
of the respondents, it would appear that the prospects of showing
that the original site
and the extended site were allocated to Mrs
Mandela in her personal capacity, are not strong.
[31]
The alternative averment that the customary continued to exist, is
based on the proposition that even if there was a complete
parting of
ways, a customary marriage is not terminated until the return of the
lobola is made or negotiated. On this question
there was a
difference of opinion between the experts Prof D. S. Koyana and Prof
R B Mqeke. Prof Mqeke supported this proposition
whereas Prof
Koyana said that the customary marriage is ended if in such a case
the husband elects not to claim a refund of the
lobola. But
this issue would be irrelevant if the customary marriage did not
survived the civil marriage and divorce.
When parties who had
been married in terms of customary law, thereafter entered into a
civil marriage before 2 December 1988, the
civil marriage prevailed.
It superseded ad extinguished the customary marriage. (See J C Bekker
Seymour’s
Customary Law in South Africa,
fifth edition, p 269 – 270; T W Bennett,
Customary
Law in South Africa
,
p 236 – 240.) In any event, parties married in terms of
customary law might enter into a civil marriage with the intent
to
relinquish the customary marriage and the consequences thereof.
That this was the case when Mr and Mrs Mandela entered
into their
civil marriage, appears to be supported by the conduct of both Mr and
Mrs Mandela. Mr Mandela was clearly of the
opinion that the
divorce order brought about a final end to all legal relationships
with Mrs Mandela. She, in turn, did not
at any time after the
divorce order and during the lifetime of Mr Mandela rely on the
continued existence of the customary marriage
nor did she attempt to
assert any right flowing therefrom. The prospects of showing
that the customary marriage remained
in existence thus appear to be
tenuous.
[32]
Regarding the consent of the community of Qunu we were referred to
the Upgrading of Land Tenure Rights Act 112 of 1991. Section
3
(1) thereof, read with Schedule 2, deals with conversion of land
tenure rights into ownership. It
inter
alia
provides that where the State is the owner of a piece of land
situated outside a formalised township which piece of land is
lawfully
occupied by a tribe or community, a deed of transfer in
respect of that land shall not be submitted unless the consent of the
tribe
or community has been obtained. Irrespective of whether
the community of Qunu was a tribe or community as defined in this
Act, the consent had to be given by decision taken by a majority of
the members of the tribe or community over the age 18 years
present
or represented at a meeting convened for the purpose of considering
the disposal of a right in land lawfully occupied by
or allocated for
the use of such tribe or community, of which they have been given
sufficient notice, and in which they had a reasonable
opportunity to
participate.
[33]
We are prepared to accept, without deciding, that such a formal
resolution by the community of Qunu was not obtained in respect
of
the donation to Mr Mandela. But it is important to note that
this requirement would be relevant only if Mrs Mandela did
not have
the right of occupation and use of the property. If she had
obtained the right of occupation and use of the property
from the
community as she claimed, no rights of the community would be
implicated. For the same reason the community of Qunu
would not
have been deprived of an informal right to land in terms section (2)1
of Act 34 of 1996 if the informal right vested
in Mrs Mandela.
In the absence of a right to the property, Mrs Mandela may not
achieve anything meaningful by the review
and setting aside of the
Minister’s decision on this ground. If the Minister’s
decision is reviewed and set aside
on this ground, the matter would
probably be referred back to the Minister for reconsideration.
In such a case the result
may very well be that after a proper
resolution of the community of Qunu, the property remains at the
disposal of the executors.
[34]
In our view, the nature of the application, the strength of the
merits of the application and the prospects of the Mrs Mandela
achieving anything meaningful also do not favour overlooking the
delay. In the exercise of our discretion we conclude that
the
delay should not be condoned. In the result, in the words of
Brand JA in
Opposition
to Urban Tolling Alliance
at para [41], we are prevented by the provisions of section 7(1) PAJA
from embarking upon the merits of review application.
[35]
The executors and the Minister asked that Mrs Mandela be ordered to
pay their costs of the application. Relying on
Biowatch
Trust v Registrar, Genetic Resources and Others
2009 (6) SA 232
(CC), counsel for Mrs Mandela submitted that in the
event of dismissal of the application, there should be no order as to
costs.
However, no Constitutional rights were considered,
because of Mrs Mandela’s unreasonable delay. Costs should
follow
the result, save in respect of the eighth and ninth
respondents. They should bear their own costs.
[36]
The following order is issued:
1.
The
application is dismissed.
2.
The
applicant is ordered to pay the costs of the first respondent and the
third respondent, in each case with the inclusion of the
costs of two
counsel.
_________________
E.M.
MAKGOBA, JP
_________________________
C.
H. G. VAN DER MERWE, J
________________
M.
J. TEFFO, J
On
behalf of the applicant:
P. Mtshaulana SC
with
K. Pillay SC and Z. Madlanga
On
behalf of the first respondent: V. Maleka SC
with
T. Ngcukaitobi
On
behalf of the third respondent: V. S. Notshe SC
with
Ms Pango
On
behalf of the eighth and ninth
respondents:
S. M. Luzipo
with
S. Malunga
/eb