Baleni v Baleni and Others (434/2009 ) [2012] ZAECMHC 19 (20 December 2012)

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[2012] ZAECMHC 19
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Baleni v Baleni and Others (434/2009 ) [2012] ZAECMHC 19 (20 December 2012)

25
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN CAPE
DIVISION: MTHATHA)
CASE NO:
434/2009
In the matter
between:
NONCEDO MADENGE
BALENI
..................................................
APPLICANT
AND
LUNGA
BALENI
....................................................................................
1
ST
RESPONDENT
KING JUSTICE
MPONDOMBINI SIGCAU
..........................
2
ND
RESPONDENT
MEC FOR HOUSING,
LOCAL GOVERNMENT
AND TRADITIONAL
AFFAIRS, EASTERN
CAPE
..................................................................................................
3
RD
RESPONDENT
______________________________________________________________________________
JUDGMENT
___________________________________________________________________________
PAKADE ADJP:
[1] This judgment
concerns the validity of the appointment of senior traditional
leadership of the Amadiba Traditional Council in
Mbizana.  The
pertinent issue before the Court is the determination of the
competing claims of the Applicant and the First
respondent as who,
between Luzuko Baleni and the First Respondent, is the rightful
person to be appointed and recognized as
the senior traditional
leader of the Amadiba Traditional Council.
[2] It is common
cause as having not been disputed or seriously disputed by the
parties that Luzuko Baleni and the First Respondent
are the sons of
the late Senior Traditional Leader (Chief) Malungelo Baleni who,
before his death on 18 February 2002, was the
Head of the Amadiba
Traditional Council in Mbizana. Luzuko Baleni is born in wedlock
between the late Chief Baleni and his third
wife, the applicant, who
were married in terms of customary law, while the First Respondent is
born out of wedlock.  The first
two wives of the said late
Chief, who are also wives married in terms of customary law, had no
issues.
[3] On 04 June 2004
the Qaukeni Regional Authority, acting in terms of section 66 of the
Transkei Constitution Act, no 15 of 1976,
designated First Respondent
as the chief of the Amadiba Tribe in the area of Amadiba Tribal
Authority. There was no recommendation
from either the Baleni Royal
Family or Amadiba Traditional Authority in support of the designation
of the First Respondent. I will
revert to this point at a later stage
in the judgment.
[4] The Applicant,
whom I have referred to as the third wife of the late Chief and the
mother of Luzuko Baleni, was aggrieved by
the designation of the
First Respondent as the Chief of the Amadiba Traditional Council and
not her son, Luzuko.  She then,
on 02 March 2009, approached
this Court on Notice of Motion seeking the following relief:
4.1  that the
recognition of the appointment of the First Respondent together with
the remuneration paid to him for the position
of senior traditional
leader be reviewed, corrected and set aside;
4.2  that this
court issue a declarator that the Applicant be recognized by the
Third Respondent as acting Senior Traditional
Leader of Amadiba
Traditional Council with effect from the 04 November 2002, being the
date of her appointment by the Royal Family
to that position.
[5]  Paramount
Chief  Justice Mpondombini Sigcau was cited together with the
Member of the Executive Council for Housing,
Local government and
Traditional Affairs of the Provincial Government of the Eastern Cape
as the Second and Third Respondents,
respectively over and above
Lunga Baleni, who was cited as the First Respondent.
[6] Although the
application was served on all the respondents, personally on the
Second Respondent, only the First Respondent is
actively opposing the
relief sought and had deposed to an answering affidavit.  The
Second Respondent did not file notice
to oppose and the Third
Respondent, who had filed notice to oppose from the onset, withdrew
her opposition before filing an answering
affidavit.
APPLICANT’S
CASE
[7] It emerges from
the founding affidavit that the applicant was appointed by the Royal
family on 04 November 2002, after the death
of her husband, to act as
the senior traditional leader and head of Amadiba Traditional
Council.  In support of this averment,
she has annexed to the
founding affidavit, a copy of the resolution of the meeting of the
Royal Family (MB1). It further appears
in paragraph 10 of the
founding affidavit that the Royal family resolved on the same meeting
that her son, Luzuko was the rightful
person to inherit his father’s
traditional leadership of the Amadiba Tribe.  This averment is
confirmed by the minutes
in MB1. However, those minutes do not
confirm her averment that she was appointed to act in her husband’s
position as senior
Traditional Leader of the Amadiba Tribe.
[8] The Applicant’s
averment that the late chief’s second wife, Mangutyana,
challenged the resolution of the Royal family
by disclosing that the
first respondent is the biological son of Mambelu, the first wife of
Chief Baleni, is not supported by MB1
and is also disputed by the
First Respondent as well as by Khaliphile Baleni, the younger brother
of the late Chief.  This
then affects the credibility of the
Applicant.
[9] The dispute, so
averred the Applicant, was referred to Qaukeni Regional Authority
which in turn appointed a committee of three
senior traditional
leaders, Chief Ntola, Chief Mlindazwe, and Chief Ndabankulu, to
investigate it and advice on the rightful person,
between Luzuko and
the First Respondent, to be designated as the senior traditional
leader of the Amadiba Tribe.  However,
before any report could
be received by the Regional Authority from that committee, the
Qaukeni Regional Authority designated the
First Respondent as the
Senior traditional leader of Amadiba tribe.
[10] Although there
is no letter attached to the founding papers from the Third
Respondent confirming the designating of the First
Respondent, it was
common cause between the parties during the hearing that the
designation was confirmed and that the First Respondent
is
receiving remuneration from the Third Respondent for services
rendered.
[11] Again for
reasons which have not been explained to the Court, after the First
Respondent had been designated, the Royal Family
met on the 23 May
2007 to revive its resolution of the 04 November 2002 and also to
appoint the Applicant to act for her son, Luzuko.
This appears in the
applicant’s founding affidavit. However, while the minutes of
the 23 May 2007 (MB6) confirm the nomination
of Luzuko as the Senior
traditional leader of the Amadiba Tribe, they do not confirm that the
Applicant was appointed to act for
him.  This is again another
unsatisfactory feature in her evidence which affects the credibility
of her averments.
[12] It was further
resolved in that Royal family meeting of the 23 May 2007 to institute
the present motion proceedings.
FIRST
RESPONDENT’S CASE
[13] The First
Respondent asserts himself to be the eldest son of the late Chief who
grew up staying in the Great House together
with the senior wife,
Mambelu, up until her death in 1999.  When the late Chief died
she had no child with his two wives and
the Applicant had just been
married.
[14] In a Royal
Family meeting of the Baleni clan which was held towards the end of
2003, the First Respondent was nominated to
inherit the senior
Traditional leadership of his father notwithstanding the fact that he
was the child born out of wedlock.
It was the second wife of
the late Chief, Mangutyana, who initiated that nomination. There is,
however, no document on record embodying
the resolution of the family
which purportedly appointed the First Respondent, a son of late chief
Baleni born out of wedlock to
inherit the chieftainship of the
Amadiba tribe in preference to Luzuko Baleni who is an undisputed
heir of chief Baleni nor are
there reasons which have been proffered
justifying such deviation from the well recognized Pondo custom that
a child born out of
wedlock cannot inherit
abi
ntestato
from his father. The Pondo custom in
this respect is in line with the common law that a child born out of
wedlock cannot inherit
from his father
abi
ntestato
but can only do so by will of his
father.
[15] It therefore
seems to me from the very onset that the mere saying so (ipse dixit)
of the First Respondent, who conceded in
the papers that he is born
out of wedlock, that he was nominated by the Royal Family, cannot
carry the day without reasons why
the royal family deviated from
custom and decided to appoint a person who is not from the royal
family. But this is a prima facie
view I have in the matter which may
not be conclusive if the points in
limine
succeed.
[16] It also emerges
from the First Respondent’s version of events that it was the
dispute over the Applicant’s eagerness
to act as a chief and
the other unidentified woman which saw the matter being referred to
Qaukeni Regional Authority by the royal
family.
[17] A meeting was
subsequently convened by the Second Respondent, who is the Head of
the Regional Authority, early in 2004. The
matter was debated and
discussed in that meeting after which a delegation of three senior
traditional leaders was appointed to
investigate the claims and
report back to the Regional Authority. That delegation failed to
carry out its mandate.  Instead,
a self appointed delegation
comprised of headman Jali, Chief Langasiki and Chief Mlindazwe
conducted the investigation and submitted
the report to the Regional
Authority, which declined it on the ground that the investigators had
no mandate to investigate the
matter.
[18]  The
dispute was then debated in the Regional Authority and in the absence
of consensus, it was put to vote.  The
First Respondent was
unanimously appointed as the rightful person to inherit the senior
traditional leadership from the late Chief.
[19] According to
the First Respondent the Applicant was present in the meeting when
the results were announced but she raised no
objection to them.
On 11 October 2007 the designation of the First Respondent was
confirmed by the Third Respondent with
retrospective effect from 01
April 2006 after which the First Respondent received his salary from
19 December 2007 to date.
[20] The First
Respondent further averred that he commenced with his duties from 05
June 2004, a day after he was designated by
the Regional Authority
and that the Applicant had not raised any objection except to bring
this application in 2009. The applicant
denied all the First
Respondent’s factual averments. In particular, she denied that
he had performed any duties as the head
of Amadiba Traditional
Council nor had he ever attended meetings of Baleni Royal Family as
he knew that he is not a child of isilili
as he was born out of
wedlock. She reaffirmed her earlier averments that a child born out
of wedlock has no right to inherit from
his father
abi
ntestato
.
SUBMISSIONS
[21] The First
Respondent sought to have the application dismissed on three points
in
limine,
which are:
unreasonable delay
in bringing the application;
failure to
exhaust domestic remedies, and
foreseeable
dispute of fact.
[22]  The first
point in
limine-
unreasonable
delay- is founded on the premise that the administrative action arose
on the 4
th
June 2004 when the
Qaukeni Regional Authority made a decision to designate the First
Respondent as Senior Traditional Leader of
Amadiba Traditional
Council. The review application was launched on 02 March 2009.
The Applicant averred in her founding
affidavit that she became aware
of the decision appointing the First Respondent in March 2008.
There is no application for
condonation of the late launching of this
application by the Applicant.
[23] The second
point in
limine
–
failure
to exhaust domestic remedies- is also founded on the premise that,
notwithstanding the fact that the Applicant is contesting
the title
or right to traditional leadership position, she failed, as she was
obliged to, to refer the matter to the commission
which has been
specifically created for this purpose before bringing the dispute
before the courts of law.
[24] On the
third point in
limine-
dispute of fact- the
applicant relies on a number of material averments that are in
dispute between the parties.  The submission
goes on to allege
that the dispute of fact was foreseeable and for that reason the
applicant should not have proceeded by way of
notice of motion.
[25] I will,
hereinafter, first deal with the points in
limine
as
they are, by their very nature, dispositive of the entire application
if the court finds that they are well taken. If the court
so finds,
there will be no need to traverse the rest of the issues in the
application and that will constitute the end of the matter.
But
if the court dismisses the points in
limine
then
it will traverse the merits of the application and decide thereon.
[26] Application
proceedings do not prescribe but are hit by the unreasonable delay
principle.  But where the review is directed
at challenging an
administrative action, the time frames for launching it are regulated
by the Promotion of Administrative Justice
Act, (PAJA)
1
[27] PAJA provides
as follows
“
7(1) Any
proceedings for judicial review in terms of section 6(1) must be
instituted without unreasonable delay and not later than
180 days
after the date-
(a) ....., on
which any proceedings instituted in terms of internal remedies
...have been concluded;
(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.
(2)(a) Subject to
paragraph (c), no court or tribunal shall review an administrative
action in terms of this Act unless any internal remedy
provided
for in any other law has first been exhausted.
(b) Subject to
paragraph (c), a court or tribunal must, if it is not satisfied
that any internal remedy referred to in paragraph
(a) has been
exhausted, direct that the person concerned must first exhaust such
remedy before instituting proceedings in
a court or tribunal for
judicial review in terms of this Act.
(c) A court or
tribunal may, in exceptional circumstances and on application by
the person concerned, exempt such person from
the obligation to
exhaust any internal remedy if the court or tribunal deems it in
the interest of justice.”
[28] It is important
to first determine if the decision sought to be reviewed is an
administrative decision to which PAJA applies.
There are many
authorities which deal with and define an administrative decision.
[29] PAJA has its
genesis from the Constitution of the Republic of South Africa
2
,
section 33 of which guarantees everyone a right to administrative
action that is lawful, reasonable and procedurally fair.
It
provides for the review of administrative action by a court or an
independent and impartial tribunal where appropriate. The

transitional provisions of the Constitution in Schedule 6 required
that the legislation envisaged in section 33 be passed within
three
years of the Constitution coming into operation.  PAJA was then
assented to on 3 February 2000.
[30] Prior to the
Constitutional era, the control of public power by the courts through
judicial review was exercised through the
application of common law
principles. After the adoption of the Constitution, such control is
now regulated by the Constitution
which contains the provisions of
section 33 dealing with judicial review.  The common law
principles that previously provided
the grounds of judicial review of
public power have now been subsumed under the Constitution and
derived their force from the Constitution.
They are not two separate
systems of law but one grounded in the Constitution.  The power
of the court to review an administrative
action now flows from the
Constitution and PAJA
3
.
That
is why in President of RSA & another v Hugo
4
,
the power of the
President to pardon or reprieve offenders had to be dealt with under
s 82(1) of the interim Constitution and not
under the prerogative of
the common law.  Similarly in
Fedsure
Life Assurance Ltd and others v Greater Johannesburg TMC &
others
5
,
the question of legality had to be dealt with under the Constitution
and not under the common law principle of ultra vires.
In
President
of RSA & others v South African Rugby Football Union &
others
6
,
the power of the President to appoint a commission and the exercise
of that power had to be dealt with under s 84(2) of the Constitution

and the doctrine of legality and not under the common law principles
of prerogative and administrative law
.
[31] Therefore this
Court derives its review powers from the Constitution and PAJA
7
.
[32] Section 1 of
PAJA defines an administrative action as:
“
Any
decision taken, or any failure to take a decision, by –
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 any
legislation; or
a natural or
juristic person, other than an organ of the state, when exercising
a public power or performing a public function
in terms of an
empowering provision, which adversely affects the rights of any
person and which has a direct, external legal
effect
but
does not include-
(aa) the
executive powers or functions of the national executive, including
the powers or functions referred to in section 79(1)(4),
84(2)(a)
,(b), (c), (d), (f), (g), (h) (i) and (k), 85(2)(b),(c),(d) and (e),
91(2), (3),(4) and (5), 92(3), 93,97, 98 ,99 and
100 of the
Constitution:
(bb)  the
executive powers or functions of the executive, including the
powers or functions referred to in section 121(1)
and (2), 125(2)(d),
(e)and (f), 126,127(2), 132(2), 133(3)(b), 137, 138,139 and 145(1) of
the  Constitution;
the executive
powers or functions of a municipal council;
the legislation
of parliament, a provincial legislature or a   municipal
council;
the judicial
functions of a Judicial Officer of a court referred to in section
166 of the Constitution or of a special  tribunal
established
under section 2 of the special investigating unit and Special
Tribunal Act, 1996 (Act 74 of 1996), the judicial function
of a
Traditional Leader under customary law or any other law;
a decision to
institute or continue a prosecution;
a decision
relating to any aspect regarding  any appointment of a Judicial
Officer, by the Judicial Service Commission;
any decision
taken or failure to take a decision, in terms of  any provision
of the
Promotion of Access to Information Act, 2000
; orany decision
taken, or failure to take a decision, in terms of
section 4
(1).”
[33] In the same
section “administrator” is defined as an organ of state
or any natural or juristic person taking administrative
action.
For purposes of this application a decision is defined in
section 1
of PAJA as 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, including the decision relating to –
(a)…
(b)…
(c)….
(d)….
(e) making a
declaration, a demand or requirement.
[34]  In
Fedsure
Life Assurance v Greater Johannesburg Transitional Metropolitan
Council and others
8
,
the Constitutional Court had an occasion to determine what is meant
by ‘administrative action’ in section 24 of the
Interim
Constitution, whether the passing of the resolutions constituted such
an action or not. The Court sought to distinguish
legislative
decisions from administrative decisions and held that resolutions
passed by a local council in terms of a by-law or
by-laws are not
administrative decisions.
[35] In
Transnet
Ltd v Goodman Brothers Pty (Ltd
)
9
Olivier
JA held that the tender process amounted to administrative action and
that the respondent was entitled to protection afforded
by section 33
of the Constitution
10
because Transnet
exercised public power and performed the public functions of a
government department.
[36] In terms of
section 1(b) of PAJA, an administrative action can be taken by a
natural or juristic person other than the organ
of the state.
But in
President
of the Republic of South Africa and others v South African Rugby
Football Union and others
11
,
it was stated that
in determining whether an act is an administrative act or not the
emphasis should be on the function rather than
the functionary, not
on the arm of government to which the actor belongs but on the nature
of power exercised.
[37] The power to
designate or appoint any person as a chief or acting chief in the
area of Transkei was regulated by section 66
of the Constitution of
the former Republic of Transkei, Act 15 of 1976, which continued to
apply notwithstanding the advent of
the new Constitutional
dispensation of the Republic of South Africa its continued
application having not been immediately repealed
by the
Justice Laws
Rationalisation Act, 18 of 1996
. It then continued to apply in
Transkei until the entire
section 66
together with schedule 4 and 10
of that Act was repealed by section 37(1) of Act 4 of 2005 with
effect from 1 April 2006. It is
important to observe that the First
Respondent was designated as chief on 4 June 2004 at the time section
66 was in force in Transkei.
The Traditional Leadership and
Governance Framework Act , 41 of 2003 came into operation on 24
September 2004 , meaning that it
was not in operation at the time the
First Respondent was designated a chief . This means therefore that
the applicable legislation
in the appointment of the First Respondent
is section 66 of the Transkei Constitution.
[38] No doubt , the
decision designating the First Respondent is an administrative
decision made by a juristic person in terms of
legislation - section
66(1) of the Transkei Constitution which then applied at the time of
the designation .
[39] It is
necessary, for the sake of understanding the institution of paramount
chieftainship, chieftainship and the manner of
appointing the
incumbents of those positions, to reproduce sub-section 1 of section
66 in its entirety. It provides that:
“
66
(1) Subject to the provisions of sub-section (2), the power -
(a) to designate or
appoint any person as paramount chief or chief or sub-chief,
whether in a permanent or in an acting capacity,
or;
(b) to institute any
permanent chieftainship in addition to the paramount
chieftainships mentioned in schedule 10, or;
(c) to institute any
other chieftainship of whatever class or status, shall continue to
vest in the regional authority concerned
subject to the confirmation
of such designation, appointment or institution by the President at
his discretion.”
[40] The powers
conferred to the President by section 66(1) were later assigned to
the Premier of the Eastern Cape Provincial Government
by section
235(8) of the Interim Constitution of the Republic of South Africa,
Act 200 of 1993. Subsequently, however, these powers
were assigned to
the Member of the Executive Council (MEC) for Housing, Local
Government and Traditional Affairs of the Eastern
Cape Provincial
Government by Proclamation no. 6 published in the Provincial Gazette
no. 323 dated 13 July 1998.
[41] It is
against this legal background that the MEC for Housing, Local
Government and Traditional Affairs of the Eastern Cape
Provincial
Government was cited by the applicant as Third Respondent .It is
because the powers of the Premier to confirm the designation
of a
person as paramount chief or chief (in the case of the First
Respondent) or sub-chief were assigned to him or her.
[42] If I understand
the peremptory language of section 66(1) properly and correctly the
power to designate or appoint a person
as a chief vests in the
regional authority , in this case , Qaukeni Regional Authority which
is not before court by reason of non-joinder.
[43] The
relief sought is directed only against the Third Respondent and it
seeks review and setting aside of his confirmation of
the appointment
of the First Respondent and of the remuneration he is getting
consequent upon his appointment. The second relief
is for an order
declaring the Applicant an acting chieftainess of Amadiba Tribal
Authority and that the Third Respondent should
recognize her as such.
There is no relief sought against the Second Respondent, rightly so,
in my view, because he had taken no
decision and as such, he will not
be affected by the outcome of the review. It is the Qaukeni Regional
Authority which made a decision
to appoint the First Respondent and
which is a reviewable decision. This view is reaffirmed by the letter
of designation which
reads as follows:
“
REGIONAL
AUTHORITY RESOLUTION
Subject to
confirmation by the State President , the Qaukeni Regional Authority
does hereby , in terms of section 66 of the Transkei
Constitution Act
1976 (Act No.15 of 1976) designate Lunga Baleni N.I.N. 7610285768080
as Chief ........in the district of Bizana
with jurisdiction over the
Amadiba tribe resident in the area of Amadiba tribal authority ".
[44] The
confirmation by the MEC does not stand alone in vacuum, it is linked
to the decision of the Qaukeni Regional Authority.
If the
confirmation is set aside it follows that the First Respondent would
cease to be a chief but the designation would still
remain intact
because the applicant does not seek an order against it. The review
is sought against the Third Respondent’s
confirmation of the
designation.
[45] The
founding affidavit does not disclose any wrong done by the Third
Respondent to warrant the setting aside of his confirmation
of the
designation of Qaukeni Regional Authority. What appears as grounds of
review are the irregularities alleged to have been
committed by
Qaukeni Regional Authority in designating the First Respondent. These
are that the designation was made before the
report of the committee
appointed to investigate the rightful person to be designated a chief
of Amadiba tribe was submitted, that
there was no resolution of
Amadiba Tribal Authority recommending the appointment of the First
Respondent and that the designation
was influenced by the Second
Respondent . The Third Respondent had nothing to do with these issues
and could even not have been
aware of their existence.
[46] Apart from the
fact that the grounds of review are directed against the decision of
a party that is not before court, there
are no grounds advanced
against the confirmation of the Third Respondent. In my respectful
view, the Applicant has not established
a cause of action.
[47] Even
assuming that I am wrong in so finding that there is no cause of
action for reviewing the confirmation of the Third Respondent
, there
are two further alternative grounds on which the applicant may not
succeed in this application .These are unreasonable
delay in bringing
the application and material dispute of fact. The non-joinder point
would have resulted in the proceedings being
stayed to enable the
Applicant to join the Qaukeni Regional Authority had there been a
cause of action established by the Applicant
and review brought
within a reasonable time .
[48] The
courts have consistently held that if in proceedings before the
court, a person who is substantially interested in the
subject matter
of the proceedings is not before the court, then the court will not
make an order affecting that person unless he
is brought before the
court (
Abrahamse
and Others v Cape Town City Council
12
.
In
Selborne
Furniture Store (Pty) Ltd v Steyn N.O.
13
the
Court of Appeal ordered a stay of the hearing of the matter pending
the joinder of the persons who had a direct and substantial
interest
in the subject matter of the proceedings .
[49] The
Qaukeni Regional Authority, a juristic person, is not before the
Court. It is the party which made the decision which triggered
this
application. The applicant decided to come to Court because the
Qaukeni Regional Authority made an unfavourable decision against

Luzuko and which sidelined him as a chief over Amadiba tribe and
preferred a child born out of wedlock. Surely that decision is

reviewable but the maker thereof must be in Court and be heard. The
Second Respondent as the Head of that Regional Authority does
have an
interest in the subject matter of the review but the Regional
Authority is the proper person to be joined because it and
not the
Second Respondent made the decision. In
No-Italy
Phindiwe Mtirara v MEC for Housing Local Government and Traditional
Affairs and three Others
,
unreported
case no.30/2005
of
the Transkei Division , Dalindyebo Regional Authority had designated
the applicant to act as chief on behalf of her minor son
. The MEC
for Housing, Local Government and Traditional Affairs refused to
confirm the designation, thus leaving the applicant
with no option
but to approach this Court for an appropriate relief. Dalindyebo
Regional Authority had been joined but the acting
King thereof,who
had signed the resolution designating the applicant, had not been
joined in the proceedings. The point of non-joinder
raised against
him was rejected by this Court on the ground that the acting King did
not have an interest separate from that of
the Dalindyebo Regional
Authority.
[50] The next
point, which is the unreasonable delay point, is dispositive of the
matter. The reasonableness or unreasonableness
of the delay depends
entirely on the facts and circumstances of a particular case (
Setsokosane Busdiens
(Edms)
Bpk v Voorsitter,
Nasionale Vervoerkommissie en 'n Ander
14
.
The
designation was made on 4 June 2004 and the First Respondent
commenced duties of a chief on the following day. The designation
was
confirmed on 11 October 2007 with retrospective effect from 1 April
2006. The First Respondent has been receiving income from
19 December
2007. The review application was brought on 2nd March 2009 although
the applicant (as she says) became aware of the
First Respondent's
appointment in March 2008. In any event the First Respondent’s
averment that the applicant was present
in the Regional Authority
when he was appointed was not disputed by her. There is no
application for condonation for the late bringing
of this review
application beyond the 180 days.
[51] The
attitude of our courts when faced with the issue of delay in
launching application proceedings on notice of motion is captured
by
Brand JA in
Associated
Institutions Pension Fund and Others v Van Zyl and Others
15
as follows :
"[46].....It
is a long standing rule that courts have the power , as part of their
inherent jurisdiction to regulate their
own proceedings , to refuse a
review application if the aggrieved party had been guilty of
unreasonable delay in instituting the
proceedings . The effect is
that, in a sense, delay would 'validate ' the invalid administrative
action (
see
eg Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
16
.
The raison d 'être of the rule is said to be twofold. First,
the failure to bring a review within a reasonable time may
cause
prejudice to the respondent. Secondly, there is a public interest
element in the finality of administrative decisions and
the exercise
of administrative functions (see eg
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
17
)"
[52] The
application of the delay rule requires consideration of two
questions:
(a) was there an
unreasonable delay, if so,
(b) should the delay
in all the circumstances be condoned?
[53] In
Gqwetha
v Transkei Development Corporation Ltd and Others
18
,
the appellant instituted review application in this Court
approximately 14 months after having been dismissed from her
employment
pursuant to disciplinary proceedings .When the point of
unreasonable delay was raised by the respondents, the appellant
argued
that the delay was occasioned by the fact that she was waiting
receipt of the copy of the record of the disciplinary proceedings.

The court of first instance found that the delay had been
unreasonable but condoned it on the basis that the appellant’s

application was strong on the merits. An appeal to the Full Bench on
the issue of condonation was upheld on the basis that the
court of
first instance had failed to exercise its inherent discretion
judicially since it had failed to take into account the
likelihood of
prejudice to the respondent should the delay be condoned.
[54] In a further
appeal to the Supreme Court of Appeal , it was held that the
administration of justice and public interest in
the finality of
administrative decisions required that challenges to the validity of
such decisions by way of proceedings for judicial
review be initiated
without undue delay .It was further held that although a delay might
cause potential prejudice to both the
efficient functioning of the
public body and to those relying on its decisions , proof of actual
prejudice was not a precondition
for refusing to entertain review
proceedings by reason of undue delay . The Appeal Court rejected the
appellant's explanation for
the delay (the absence of a transcript of
the disciplinary hearing that led to her dismissal) as spurious: that
it had no relevance
to her ability to commence review proceedings
since all but one of the grounds on which she had sought the review
were quite unrelated
to the content of the transcript. The decision
of the court of first instance that the lapse of 14 months before
launching the
review was unreasonable was upheld by the Supreme Court
of Appeal. The court of first instance condoned the 14 months delay
on
the ground that it was 'not very long ' and that the appellant was
' quite strong on the merits of the application'. The Supreme
Court
of Appeal agreed with the Full Bench that the learned Judge's
approach was unduly narrow in this respect.
[55] The delay
cannot be evaluated in a vacuum but only relative to the challenged
decision and particularly with the potential
for prejudice in mind.
“In abstract terms the period of delay might be described as
being 'not very long ' but it was correctly
found to have been
unreasonable. I do not think that a delay that is unreasonable in its
extent can simultaneously, and without
more, serve as the basis for
overlooking it. What the learned Judge overlooked, as correctly
pointed out by the Court
a
quo
,
was the inherent
potential for resultant prejudice if the decision was set aside”
per Nugent JA at para [33]- Ggwetha judgment
( supra).
[56] The
review proceedings were instituted more than 4 years from the date of
designation and there is no explanation therefor
.That the Applicant
became aware of the appointment of the First Respondent only in March
2008 is spurious. On the 23 June 2004,
the Applicant instructed her
Attorneys of record to address a letter to the Third Respondent
requesting
him
not to confirm the appointment of the First Respondent. In any event
she had been present when the decision was made.
[57] As Nugent
JA said, an unreasonable delay cannot, simultaneously, without more,
serve as a basis for overlooking it. Unlike
in the Gqwetha case,
above, where the delay was 14 months, the delay in the present
application was more than 4 years without an
explanation. To condone
it will obviously prejudice the First Respondent who is already
occupying the position of a Chief lawfully
and earning a salary for
it. Further , I have already alluded to the fact that there is no
explanation for the delay but even if
there was any , I would not be
in a position to know , in the light of the dispute of fact , if the
Applicant' s son , Luzuko ,
would be appointed in the position of
chieftainship if I were to condone the delay . The contest over the
position would take a
long time to be resolved, even longer than 4
years the matter had taken to be brought to Court, to the further
prejudice of the
Amadiba tribe which would be without a traditional
leader. I have observed that the review is sought against the
confirmation of
the designation but there are no grounds pointing
fault at the Third Respondent’s confirmation. The grounds that
have been
advanced are directed at the Qaukeni Regional Authority
which has not been joined in the proceedings. In the circumstances,
to
condone the unreasonable delay will not result in the review of
the decision of the Qaukeni Regional Authority in its absence.
[58] Having
considered all the circumstances of this matter , I am respectfully
of the view that what is fatal in this application
is  the cause
of action for review which is lacking; further the unexplained
unreasonable delay which the Court cannot condone
and last ,material
dispute of fact which cannot be resolved on papers. The non-joinder
of the Qaukeni Regional Authority is not
fatal because, as already
alluded to above, it would be cured by joinder with the leave of the
Court.
[59] In
conclusion I wish to sound my displeasure at the draftsmanship of the
application papers in this matter. The cause of action
was not
properly conceived in a matter so complex as to require composure to
collect and collate material evidence before embarking
into
litigation. The notice of motion embodying relief was not in the
papers when the matter was heard. The poor state of the Applicant's

founding papers reminds me of the remark once made by Stegmann J in
Reynolds
v Maclenbeg
19
,
about the need for practitioners to return to disciplined practice.
He said:
“
Lest I
should be thought to condone this state of affairs, I must take this
opportunity to record that I consider the time to be
overdue for a
return to a much more disciplined form of practice. What should occur
is, of course, that an attorney should take
instructions from his
client in an orderly way. This involves obtaining and considering all
of the relevant documents; arranging
them, and the relevant facts
which they tend to establish, in a chronological sequence; and taking
statements from the various
witnesses in which the relevant
allegations of fact are also arranged in chronological sequence.
The preparatory work provides
the raw material on which a decision
can be taken about what relief to seek and whether to proceed by way
of action or by way of
motion.”
[60] I would
consider, for purposes of costs, the fact that the Applicant was
vindicating the constitutional right of his son, Luzuko
to inherit
the chieftainship of his late father. Quite obviously, the Applicant
is an indigent rural woman and to order her to
pay costs of this
application would certainly discourage her and the public from
pursuing their constitutional rights in the fear
that if they lose in
the litigation, they would be mulcted in costs.
ORDER
[61]In the
circumstances, I make the following order:
1. That the
application is dismissed;
2. That each party
shall pay its own costs.
_________________________________
LP Pakade
ACTING DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
For the
Applicant
:
Adv
M.Nonkonyane
Instructed by
:
Mgxaji Attorneys
Messrs Mgxaji Inc
No.45 Leeds Road
Mthatha
For the
Respondent
:
Mr
Spoor
Instructed by
:
Bahle and Associates
No. 7 Park Road
Mthatha
Date Heard
: 23 March 2012
Date
delivered
:
20
December 2012
1
Act
3 of
2000
2
Act
108
of 1996
3
Pharmaceutical
Manufacturers Association of SA & Another: In re Ex Parte
President of RSA & Others 2000(2) SA 674 (CC)
at 694 par [41]
4
1997(4)SA
1 (CC)
5
[1998] ZACC 17
;
1999
(1) SA 374
(CC)
6
2000(1)
SA 1 (CC)
7
See
also School Governing Body of Ntilili JSS & others v Makhitshi &
others(615/2008)[200] ZAECMHC 23 “2 July 2009”
8
1991(1)
SA 374 (CC)
9
2001(1)
SA 853 (SCA)
10
Act
108 of 1996
11
2000(1)
SA 1 (CC); 1999(10) BLCR 1059 at par [140]-[141]
12
1954
(2)SA 178 (C)
13
1970
(4) SA 422
(A)
14
1986
(2) SA 57
(A) at 86 E-F
15
2005(2)SA
302 (SCA)
[2004] 4 All SA 133
at 321B
16
2004
(6) SA 222([2004] 3 All SA 1 at par [27]
17
1978(1)
SA 13(A)at 41
18
2006(2)
SA 603 SCA
19
1996(1)
SA 75 (WLD) at 78-79