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[2013] ZAGPPHC 70
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Mgombane Royal Council v Kekana and Others (34/2012) [2013] ZAGPPHC 70 (1 March 2013)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(POLOKWANE
CIRCUIT COURT OF THE NORTH GAUTENG HIGH COURT)
Case
number: 34/2012
Date:
1 March 2013
In
the matter between:
MGOMBANE
ROYAL
COUNCIL
....................................................................
Applicant
And
LESIBA
VAALTYN
KEKANA
.........................................................................
First
Respondent
MOKOPANE
TRADITIONAL
AUTHORITY
....................................................
Second
Respondent
THE
SENIOR MANAGER: DEPARTMENT
OF
..........................................
Third Respondent
CO-OPERATIVE
GOVERNACE,
HUMAN
SETTLEMENT & TRADITIONAL AFFAIRS
LIMPOPO
PROVINCIAL GOVERMENT
PREMIER:
LIMPOPO PROVINCIAL GOVERNMENT
................................
Fourth
Respondent
JUDGMENT
PRETORIUS
J.
[1]
This is an application for a review in terms of rule 53, requesting
the Court to rescind and set aside:
“
The
decision of the Fourth Respondent to recognize the First Respondent
as a Senior Traditional leader or Kgosi of the VAALTYN KEKANA
TRADITIONAL COMMUNITY, which was approved or issued in terms of the
Certificate of Recognition to him, with effect from 16 April
2003, ”
and
“
The
question of the recognition or identification of the Senior
Traditional Leader of Kgosi or Regent for Vaaltyn Kekana Traditional
Community be referred back for re-consideration by the Third and
Fourth Respondents, respectively in the District of the Second
Respondent, alternatively that it be referred back to the Fourth
Respondent for a proper decision, ”
and
“
That,
condonation for the late filing of this application be granted.
[2]
This application is opposed by the first and second respondents,
whilst the third and fourth respondents will abide with the
court’s
decision. Initially the third and fourth respondents opposed the
application, but withdrew their opposition.
[3]
The decision the court is requested to rescind and set aside, is a
decision of the Executive Council of the Limpopo Provincial
Government appointing Lesiba Vaaltyn Kekana as Kgosi of Mokopane
Traditional Authority: Waterberg District on 16 March 2003.
[4]
Decision No 40/2003 reads as follows:
“
That
Kekana Lesiba Vaaltyn born from Naume who was the Candle Wife be
appointed Kgosi of Mokopane Traditional Authority: Waterberg
District, in terms of the Black Administration Act, Act 38 of 1927
and that he be remunerated.
[5]
An application for condonation was launched almost 10 years after the
decision had been taken. This application for condonation
is
vehemently opposed by the first and second respondents. The parties
are ad idem that the whole matter should be argued as the
condonation
application forms part of the main application. The application was
served on the first and second respondents on 24
January 2012 -
almost 9 years after the decision had been taken.
[6]
There was a previous review application in 2004 to the High Court
wherein the same relief was requested as in the present application.
Ms Emily Kekana and Constance Kekana were amongst the applicants in
the 2004 application. They are two of the members who are part
of the
present application. The 2004 application was abandoned. No reason
for these actions are set out by the applicant. On 21
November 2005
Lesiba Bernard Kekana deposed to an opposing affidavit, after the
first respondent had apparantly instituted an application
to have his
appointment as Kgosi confirmed by the court. This application went no
further and no details were given to the court.
[7]
Apparently certain steps were taken during August 2006 to refer the
so-called dispute to the Commission on Traditional Leadership
Dispute
and Claims. No further steps were taken by the applicant to ascertain
what had happened to the referral.
[8]
Only on 13 May 2011 did the applicant enquire from the Commission on
Traditional Leadership as to what the position was - 4
years and 9
months after referring the matter. There is no explanation whatsoever
of what had transpired in the time period 2007,
2008, 2009, 2010 and
the first part of 2011.
[9]
There is only one letter from the office of the fourth respondent
acknowledging receipt of a letter from the Secretary, Mgobane
Local
Authority Moshade. The letter to which is referred to is not attached
and the court does not know what the contents of this
letter had
been.
[10]
On 9 September 2011 the applicant’s attorney enquired from the
fourth respondent as to the reasons for the decision to
appoint
Lesiba Vaaltyn
Kekana
as Kgosi. No reply was received and no further enquiries were made by
the applicant’s attorney.
[11]
Thereafter the present application was served on the first and second
respondents on 24 January 2012. It is clear that the
applicant had
legal advice from the onset as a review application was launched in
2004 - there is no explanation as to why it was
abandoned. There is
no explanation as to the inordinate delay from 2006 until the
beginning of 2012 to launch the present review
application.
[12]
In Bertie van Zyl v Minister of Safety and Security
2010 (2) SA 181
CC
at 190 D Mokgoro J found:
“
[14]
However, in determining whether condonation may be granted, lateness
is not the only consideration. The test for condonation
is whether it
is in the interests of justice to grant condonation.” (Court’s
emphasis)
[13]
In Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
2004
(6) SA 222
SCA at 249 H - I the court found:
“
In
weighing the question whether the lapse of time should preclude a
court from setting aside the invalid administrative act in
question
an important - perhaps even decisive - consideration is the extent to
which the appellant or third parties might have
acted in reliance
upon it. ”
[14]
and in Oudekraal Estates (Pty) Ltd v City of Cape Town
2010 (1) SA
333
in paragraph 33 Navsa JA found:
“
In
reviewing and considering whether to set aside an administrative
decision, courts are imbued with a discretion, in the exercise
of
which relief may be withheld on the basis of an undue and
unreasonable delay causing prejudice to other parties,
notwithstanding
substantive grounds being present for the setting
aside of the decision. The application of the delay rule would in a
sense ’validate'
a nullity. This rule evolved because, prior to
the Promotion of Administrative Justice Act 3 of 2000 (PAJA), no
statutorily prescribed
time limits existed within which review
proceedings had to be brought The rationale was an acknowledgment of
prejudice to interested
parties that might flow from an unreasonable
delay as well as the public interest in the finality of
administrative decisions and
acts. ” (hof se klem)
[15]
In Gqwetha v Transkei Development Corporation Ltd and Others
2006 (2)
SA 603
SCA Nugent AR found in paragraph 22:
“
It
is important for the efficient functioning of public bodies (I
include the first respondent) that a challenge to the validity
of
their decisions by proceedings for judicial review should be
initiated without undue delay The rationale for that longstanding
rule - reiterated most recently by Brand JA in Associated
Institutions Pension Fund and Others v Van Zyl and Others at 321 - is
twofold: First, the failure to bring a review within a reasonable
time may cause prejudice to the respondent. Secondly, and in
my view
more importantly, there is a public interest element in the finality
of administrative decisions and the exercise of administrative
functions. (Court s emphasis)
[16]
In Setsokosane Busdiens v Nasionale Vervoerkommissie 1986 (2) 57 AD
Hefer JA found at p 86:
“
In
Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad op 39
het MILLER AR dit soos volg beskryf:
"Word
beweer dat die aansoekdoener nie binne redelike tyd die saak by die
Hof aanhangig gemaak het nie moet die Hof beslis
(a) of die
verrigtinge wel na verloop van 'n redelike tydperk eers ingestel is
en (b) , indien wel, of die onredelike vert raging
oor die hoof
gesien behoort te word. Weer eens, soos dit my voorkom, met
betrekking tot (b), oefen die Hof 'n regterlike diskresie
uit, met
inagneming van al die relevante omstandighede."
[17]
The applicant cannot rely on blaming the previous attorneys for the
delay of several years, as Mr Pathudi, for the applicant,
tried to do
during argument.
[18]
In Saioojee and Another v Minister of Community Development
1965 (2)
AD 135
on p 141 C-D Steyn HR found:
7
should point out, however, that it has not at any time been held that
condonation will not in any circumstances be withheld if
the blame
lies with the attorney. There is a limit beyond which a litigant
cannot escape the results of his attorney's lack of
diligence or the
insufficiency of the explanation tendered. To hold otherwise might
have a disastrous effect upon the observance
of the Rules of this
Court. Considerations ad misericordiam should not be allowed to
become an invitation to laxity(Hof se klem)
[19]
The applicant contends that Promotion of Administrative Justice Act 3
Of 2000 (“PAJA”) is not applicable in this
instance and
the court should adjudicate the application in terms of the common
law. I cannot agree as the decision take by the
Executive Council was
an administrative act in terms of section 1 of PAJA. Section 1
provides inter alia:
“’’
administrative
action” means any decision taken, or any failure to take a
decision, by -
(i)
an organ of state, when -
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
any legislation. ”
[20]
Section 7 of PAJA provides that any proceedings for judicial review
in terms of section 6 (1) must be instituted without reasonable
delay
and not later than 180 days after the applicant had become aware of
the decision.
[21]
Miller JA held in Wolgroeiers Afslaers v Munisipaliteit van Kaapstad
1978 (1) 13 on p 41 D - F:
Dit
kan teen die regspleging en die openbare beiang strek om toe te taat
dat sodanige besiissings of handelinge na tydsverloop van
onredeiike
iang duur tersyde gestel word - interest reipublicae ut sit finis
Iitium. Oorwegings van bierdie aard vorm ongetwyfeld
'n dee/ van die
onderiiggende redes vir die bestaan van die reel.” (Court’s
emphasis)
[22]
There is no cogent explanation by the applicant for the time period
that had lapsed between 2006 and 2011, a period of five
years, before
this application was launched and the court cannot accept the
argument that the court should condone the applicant’s
actions
in letting 5 years lapse before instituting the review application.
The court finds that the application was launched after
an
unreasonable time and that the court should not condone the
unexplained length of time it took the applicant to launch the
present review application.
[23]
I have considered all the facts and circumstances and listened to the
arguments by legal counsel. I have considered the authorities
and am
of the opinion that the applicant cannot succeed in the application
for condonation. The court finds that the application
was launched
after an ureasonable time and that the court should not condone the
unexplained length of time it took the applicant
to launch the
present review application.
[24]
The background giving rise to the application for review is that
Kgosi MA Kekana died in April 2002. Two groups of the Kekana
Tribe
supported different candidates. The first group supported Anna’s
son. Anna was an ordinary wife of Kgosi, but Naume,
whose son was
supported by another group, was a candle wife.
[25]
Mr Phatudi, for the applicant, argued that there were no
consultations with the two opposing groups before a decision was
taken to recognize Naume’s son as the Kgosi. This cannot be
true as it is set out in the memorandum in which Naume’s
son is
indicated as the preferred candidate that:
“
In
order to bridge the gap between the two parties, several meetings
were held with them by Government officials but there was no
agreement reached. ”
[26]
It is clear from the memorandum that the cluster went to great
trouble to ascertain which were the true facts. They consulted
widely
to find out what the Ndebele Culture was in regards to finding an
heir to the throne. They realized that the matter may
end up in court
and noted it in the memorandum. The decision was taken not to appoint
Anna’s son as Kgosi as Anna’s
mother was not a candle
wife or masechaba. It was recommended that the first respondent be
appointed as a Kgosi as he was born
from a candle wife or masechaba.
[27]
Mr Nameng, for the respondents, argued that the applicant contradicts
itself as set out in the founding affidavit that on 6
February 1963 a
decision was taken to marry a Langa. Then later on in the same
affidavit it is set out by the deponent that a candle
wife will not
be chosen from the Royal House of Langa of Mapela. This is the
position, according to Mr Phatudi in spite of the
decision of 6
February 1963.
[28]
The court does not have to decide the merits of the matter, should
the court find that condonation for the late application
should not
be granted. In any event it is clear that the decision of the
Executive Council of 16 March 2003 cannot be faulted,
as extensive
consultations took place with the two groups as well the Bakenberg
Traditional Authority, the Mapela Traditional Authority,
the
Lekalakala Traditional Authority and the Zebediela Traditional
Authority.
[29]
Although Mr Phatudi requested the court to take into consideration
that it was lay people who are involved, the court cannot
give
credence thereto, as they already instituted a review application in
2004. According to the deponent of the founding affidavit
this 2004
application was abandoned, without any reason for waiting nine years
before instituting a further review application.
[30]
In the circumstances the merits of the application is not such that
it can persuade the court to grant condonation for the
launch of the
review application 9 years after the decision has been taken. In line
with the Oudekraal decision (supra) it is clear
that since 2003 the
applicant has been the Kgosi. The unreasonable delay will prejudice
the respondent should the court now entertain
the review application.
The unreasonable delay by the applicant to institute this application
is not in the public interest in
the finality of the decision taken
in 2003.
[31]
The following is made an order of court:
1.
The application is dismissed with costs;
2.
In as far as it is necessary the application for condonation is
dismissed with costs.
Judge
Pretorius
Case
number : 34/2012
Heard
on : 26 February 2013
For
the Applicant / Plaintiff : Mr Phatudi
Instructed
by : M.G. Phatudi Inc
For
the Respondent : Adv Nameng
Instructed
by : Makhafola Verster Inc
Date
of Judgment : 1 March 2013