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2024
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[2024] ZAECMHC 37
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Sithelo and Another v Premier of the Eastern Cape Province and Others (2607/2022) [2024] ZAECMHC 37 (21 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO.: 2607/2022
REPORTABLE:NO
THULANI
PATRICK SITHELO
First
Applicant
SITHELO
ROYAL FAMILY
Second
Applicant
And
PREMIER
OF THE EASTERN
CAPE
PROVINCE
First
Respondent
MEC
FOR CO-OPERATIVE GOVERNANCE
&
TRADITIONAL AFFAIRS
Second
Respondent
GWADISO
KHIWA ROYAL FAMILY
Third
Respondent
DUMISANI
GWADISO
Fourth
Respondent
MPUMALANGA
GWADISO
Fifth
Respondent
THOZAMILE
SITHELO
Sixth
Respondent
JUDGMENT
TOKOTA
ADJP
[1]
This is an application for leave to appeal against the judgment and
order granted by Notyesi AJ dated 9 April 2024. The
grounds of
appeal are not elegantly put as envisaged in Rule 49 of the Uniform
Rules of Court. They are what was referred to by
Leach J, as he then
was,
[1]
as a diatribe of some [15] pages criticising the judgment, analyzing
(at times incorrectly) certain of the evidence and the findings
made,
putting forward certain submissions. These criticisms of the judgment
did not clearly and succinctly spell out the grounds
upon which leave
to appeal is sought in clear and unambiguous terms
.
[2]
Rule 49(4) provides:
“
Every
notice of appeal and cross-appeal shall state-
(a)
what part of
the judgment or order is appealed against; and
(b)
the particular
respect in which the variation of the judgment or order is sought.”
Consequently,
part of the judgment or order must be clearly identified and the
grounds upon which such finding or order is attacked
must be clear in
no uncertain terms.
[3]
This application was couched in the form of an affidavit with lengthy
ambiguous paragraphs full of argument. To begin with,
it is stated
that in paragraph 6 of Notyesi AJ’s judgment, the court said
condonation was being sought in respect of the
late institution of
the proceedings. This assertion is incorrect and Mr Tyopo for the
applicant properly conceded so much. Paragraph
6 of the said judgment
reads:
‘
[6]
The relief is opposed by the third to sixth respondents on the basis
that the applicants have failed to meet
the requirements for the
grant of condonation in respect of the late institution of the
proceedings and that the matter has already
been determined by the
court.’ When one has regard to the answering affidavit of the
respondents the deponent says ‘The
late filing of this
application for review should not be condoned.’
[4] In
addition, the basis upon which it is alleged that Notyesi AJ erred in
finding that in the previous
Sithelo
case quoted hereunder Jolwana J dismissed the application on the
basis of undue delay is puzzling.
In
Sithelo v
Royal Family and Another v Premier of Eastern Cape and Others
(2779/2020)
[2021] ZAECMHC 28 (17 August 2021) Para.28 Jolwana J held:
‘
As
I have said before, the applicants elected not to apply for an
extension of the 180-day period, or for the condonation of any
delay
even out of caution, if they believed that it was not necessary.
They have not done so. On the authority of
Opposition
to Urban Tolling Alliance
which was cited with approval by the Constitutional Court in
ASLA
Construction
,
this Court has no jurisdiction to even entertain the review
application and therefore, this application stands to be dismissed
on
this ground alone.’
[5]
As I understand Notyesi AJ’s judgment he dismissed the
application primarily on three grounds. First, he found that there
was an undue delay of the institution of the proceedings and there
was no application for condonation. Therefore, on that basis
the
application had to be dismissed. Second, the court held that the
matter was res judicata. Third, he held that there was a dispute
of
fact which could not be resolved on the papers. Consequently, since
the applicant did not ask for referral to oral evidence
the
application fell to be dismissed.
[6]
As regards undue delay point, Mr Tyopo argued that since the relief
sought was concerned with a declaratory order, not a review,
the
court erred in invoking the unreasonable delay rule. Consequently, so
the argument went, the question of condonation was moot
because the
prayer seeking a review was abandoned. This, so he contended, is
because the court was left with prayer 1 to decide
the matter. Prayer
1 related to a declaratory order that the first applicant is the only
rightful and legitimate heir to the headmanship
of Lower Ndungunyeni
Administrative Area, Ngqeleni.
[7]
The submission was therefore that since the relief sought is of a
declaratory nature the rule against undue delay is not applicable.
If
regard is had to case law the correctness of the submission is
doubtful. In
Lion
Match Co Ltd v
Paper
Printing Wood and Allied Workers Union,
[2]
the applicant sought an order declaring that an application made by
the first respondent to the Regional Director of Manpower
for
KwaZulu-Natal for the establishment of a conciliation board was
invalid for want of compliance with the provisions of s 35(2)(b)
of
Act 28 of 1956. The learned judge of appeal said in that case:
‘
In
my view, it is
clear, as counsel for the appellant conceded, that in essence the
appellant's attack on the jurisdiction of the industrial
court to
determine the dispute between the parties amounted to a review, even
though it had not been brought under Rule 53 of the
Uniform Rules of
Court. That being so, it follows that the rule that an applicant for
review who fails to bring the application
within a reasonable time
may (unless the delay can be condoned) lose the right to complain of
the irregularity in regard to which
the review is brought applies in
this case; see, for example, Wolgroeiers Afslaers (Edms) Bpk v
Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) and Mamabolo v
Rustenburg Regional Local Council
[2000] ZASCA 133
;
2001 (1) SA 135
(SCA).’
[8]
Again in
Naptosa
v Minister of Education, Western Cape
[3]
Conradie J said:
‘
The
declaratory order, being as flexible as it is, can be used to obtain
much the same relief as would be vouchsafed by an interdict
or a
mandamus.
Where
it is not necessary that a record of proceedings be put before the
Court, a declaratory order could serve as a review.
A
Court, in exercising its discretion whether to grant a declaratory
order should, accordingly, in an appropriate case weigh the
same
considerations of 'justice or convenience' as it might do in the case
of an interdict or a review.’ Accordingly, a relief
sought in
the form a declaratory order of the past event is in essence a
review. A declaratory order is an order by which a dispute
over the
existence of some legal right or entitlement is resolved. The right
can be existing, prospective or contingent. [Emphasis
added]
[9]
Ms Msindo, for the third to the sixth respondents, contended that
when the court is called upon to make a declaratory order
it
exercises a wide or loose discretion. Therefore, a court of appeal
will not lightly interfere with the exercise of that discretion.
She
relied on the case of
Queen
Sibongile Winnifred Zulu v Queen Buhle Mathe and Others
[4]
where
Mbatha JA said: ‘
The
test whether a court of appeal is entitled to interfere with the
exercise of a wide discretion is now settled. It is that,
in
the absence of misdirection or irregularity, a court of appeal would
ordinarily not be entitled to substitute its discretion
for that of a
lower Court.’
Accordingly,
Ms Msindo contended that the appeal has no prospect of success as the
appeal court would not come to a different conclusion.
[10]
The rule against undue delay is procedural and can therefore be
enforced by the Courts mero motu.
[5]
Consequently, Notyesi AJ was entitled to deal with unreasonable delay
mero motu even if it was not raised by the respondents. There
was no
application for condonation. It follows that the court was entitled
to refuse to entertain the matter in those circumstances.
I am not
persuaded that another court would see things differently.
[11]
In substance in prayer 1 the applicants indirectly sought an order
recognizing the first applicant as the only rightful and
legitimate
heir to the headmanship of the area concerned. This recognition has
been refused by the first and second respondents
who are empowered to
do so in terms of the legislation The applicant says so in so many
words when he said in the affidavit. “Because
of this objection
the first and the second respondents refused and or failed to
recognize my identification and as required by
legislation”.
[6]
To make such a declaratory order would be tantamount to reviewing and
setting aside such decision.
[12]
In the event I am wrong about the delay rule being applicable in this
case there is still an insurmountable obstacle of res
judicata. The
question of res judicata was fully dealt with by Notyesi AJ in the
judgment and I agree with his reasoning and conclusion
in this
regard. In my opinion, the previous application before Jolwana J was
in substance the same application that was before
Notyesi AJ.
[13]
Mr Tyopo submitted that these were two distinct matters. He submitted
that in the matter before Jolwana J the applicants sought
a review of
the decision for failing to recognize the second applicant as the
headman of the area concerned and in the matter before
Notyesi AJ the
applicants sought a declaratory order and not a review. I drew his
attention to cases of
Naptosa
[7]
and
Lion
Match
[8]
as regards the distinction between a review and a declaratory order.
Since he was not aware of these two decisions he was, understandably,
unable to assist me in this regard.
[14]
In my view the distinction between the present matter and that which
was before Jolwana J is a distinction in form and not
in substance.
In the application before Jolwana J the applicants sought an order
reviewing the decision of the respondents for
refusing to recognize
the first applicant (the second applicant in that case) as the
rightful headman of the Ndungunyeni Administrative
Area, Ngqeleni, in
accordance with the recommendations by the House of Traditional
leaders dated 22 March 2017. In the present
proceedings the
declaratory order sought is in respect of the recognition as a
headman of the same area and is based also on those
recommendations
dated 22 March 2017.
[15]
It is necessary to mention that the recommendations of 22 March 2017
came about as a results of second respondent’s referral
of the
claim of headmanship by the applicant to the House of Traditional
Leaders to verify it.
[16]
Mr Tyopo contended that the first applicant is not only relying on
the recommendations but also on his heritage rights in accordance
with customary law. I am not persuaded that anything makes a
difference in this regard.
[17]
It may appear that the relief sought in one matter is different from
the other but they are both based on the same cause of
action, namely
the recognition of the first applicant as the headman of Ndungunyane
Administrative area. Akin to the res
judicata is the ‘once
and for all rule’. In
Evins
v Shield Insurance Co
Ltd
[9]
Cobbert
JA said: 'This rule appears to have been introduced into our practice
from English law . . . . Its introduction and the
manner of its
application by our Courts have been subjected to criticism . . . but
it is a well-entrenched rule. Its purpose is
to prevent a
multiplicity of actions based upon a single cause of action and to
ensure that there is an end to litigation. Closely
allied to the
"once and for all" rule is the principle of res judicata
which establishes that, where a final judgment
has been given in a
matter by a competent court, then subsequent litigation between the
same parties, or their privies, in regard
to the same subject-matter
and based upon the same cause of action is not permissible and, if
attempted by one of them, can be
met by the
exceptio
rei judicatae vel litis finitae
.
The object of this principle is to prevent the repetition of
lawsuits, the harassment of a defendant by a multiplicity of actions
and the possibility of conflicting decisions . . . . The claimant
must sue for all his damages, accrued and prospective, arising
from
one cause of action, in one action and, once that action has been
pursued to final judgment, that is the end of the matter.'
I
must mention that the ‘once and for all rule’ is merely
mentioned here in passing and this tallies with introductory
remarks
made by Notyesi AJ in paragraph 1 of his judgment.
[18]
Having read the judgment of Notyesi AJ I do not see another court
coming to a different conclusion. On this ground as well
there are no
prospects of success on appeal.
[19]
As far as the appeal against the costs order is concerned, the
general rule is that costs must follow the event. Furthermore,
the
court hearing the matter has a discretion in relation to an order of
costs. The appeal court will not interfere with that discretion
unless the applicant can satisfy the court that an appeal court would
reasonably find that exceptional circumstances exist that
warrant
such interference. In the absence of exceptional circumstances, the
appeal would not have any reasonable prospect of success,
and the
application for leave to appeal will consequently have to be
dismissed.
[20]
In the result, the following order will issue:
The
application for leave to appeal is dismissed with costs.
B R TOKOTA
ACTING DEPUTY JUDGE
PRESIDENT
EASTERN
CAPE DIVISION
APPEARANCES:
Counsel
for the Appellant
Mr
M Tyopo
Instructed
by
M
Tyopo attorneys
Counsel
for the Respondent
A
Msindo
Instructed
by
V
V Msindo & Associates
Heard
on
16
May 2024
Judgment
Delivered on
21
May 2024
[1]
Songono
v Minister of Law & Order
1996
(4) SA 384 (E)
[2]
2001 (4) SA 149
(SCA) at para.25.
[3]
2001(2) SA 112 (c) at 126G
[4]
(1062/2022)
[2024] ZASCA 22 (8 March 2024) Para 13.
[5]
Mkhwanazi
v Minister of Agriculture & Forestry, KwaZulu
1990
(4) SA 763
(D) at 767.
[6]
Para.30 p.15 of the Founding affidavit.
[7]
Footnote 4 supra
[8]
Footnote 3. supra
[9]
1980(2)
SA 814 (A) at 835G-H