IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
Case No: 37875/2011
Reportable: No
Of interest to other Judges: No
Revised: No
SIGNATURE
Date: 21 January 2025
In the matter between:
MUZIWENKOSI JOHANNES RADEBE 1st Applicant
AMAHLUBI ROYAL COUNCIL 2nd Applicant
and
COMMISSION ON TRADITIONAL LEADERSHIP 1st Respondent
AND DISPUTES
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 2nd Respondent
KING GOODWILL ZWELITHINI ZULU 3rd Respondent
ZULU ROYAL COUNCIL 4th Respondent
MINISTER OF CO -OPERATIVE GOVERNANCE 5th Respondent
AND TRADITIONAL AFFAIRS
2 PREMIER, KWAZULU -NATAL PROVINCE 6th Respondent
CHAIRMAN, NATIONAL HOUSE OF TRADITIONAL 7th Respondent
LEADERS
JUDGEMENT
_____________________________________________________________________________________________
Mooki J
1 This application is for the review of the finding by the first respondent (the
Commission) concerning a claim for the restoration of the kingship of the
amaHlubi.1 The Commission considered the claim pursuant to sections
25(4) and 25(2)(a)(vi) of the Traditional Leadership and Governance
Framework Act, 41 of 2003 (The Framework Act).
2 The commission framed the issue as follows regarding the claim:
DETERMINATION
7.1 Issues to be determined
7.1.1 The issues are:
(a) Whether in the course of the history of amaHlubi, a kingship was
established;
(b) How and when was the kingship lost;
(c ) Can such kingship be restored?
3 The Commission concluded as follows:
CONCLUSION
1 The applicants abandoned several other prayers detailed in the notice of motion.
3 10.1 In Conclusion:
10.1.1 In terms of the Framework Act, amaHlubi do not have [a] kingship.
10.1.2 Thus, there is no kingship to be restored.
10.1.3 Therefore, the claim by Muziwenkosi Johannes Radebe is
unsuccessful.
4 The first, second and fifth respondents are the only respondents who
oppose the application. I refer to them as “the respondents” for ease of
reference.
5 The Commission made its findings on 21 January 2010. The then President
(the second respondent), Mr Jacob Zuma, made a public statement about
the outcome of the Commission’s findings on 29 July 2010. The applicants
instituted review proceedings on 7 October 2011. The applicants accept
that the review was brought late, for which they seek condonation. The
respondents oppose the granting of condonation. They also oppose the
application on the merits.
6 The applicants filed their supplementary founding affidavit and the
replying affidavits late. They seek condonation for the delay. The
respondents oppose granting condonation.
7 I first address the condonation applications, taking each pleading in turn.
Mr Radebe, the first applicant, deposed to all affidavits in the application.
4 In the condonation application for the late filing of the review application
8 The applicants say they received the Commission’s report in October 2010
and that they should have filed their review application by April 2011. They
give the following as the reasons for the delay in filing the application:
(1) They had meetings and discussions, on receipt of the report, on
possible steps. No clear agreement was reached as of December 2010.
They held further meetings, including on 5 April 2011. The meetings
were under the guidance of Bekithemba.
(2) The applicants were dissatisfied with the guidance of Bekithemba,
who resigned on 7 May 2011. A new national working committee was
formed on that date.
(3) The national working committee then embarked on efforts to raise
funds for the review and to obtain legal advice.
(4) The applicants engaged the services of Mahodi attorneys. The
attorneys instructed counsel on the way forward and prospects of
success in the review. The applicants consulted with counsel on 17
May 2011, with counsel sent instructions a week after that meeting.
(5) The deponent, the legal representatives, together with Amos and
Beauty, consulted on 8 August 2011 and 12 August 2011 respectively,
to finalise the review application.
(6) The applicants requested an extension of the 180 -day period. The
respondents did not object to the request.
5 9 The applicants say they “…have reasonable prospects of success in the
review application as would more fully appear from the grounds for review
elsewhere above and further set out below.” They also contend that there is
no material prejudice to the respondents because the respondents did not
object to the request for an extension, and that any prejudice may be
compensated by an appropriate order as to costs.
10 The respondents raised the following as the bases for opposing
condonation.
11 The respondents say the applicants do not meet the requirements for
condonation, including failing to explain the entire period of the delay. They
point out that the Commission’s decision was made on 21 January 2010 and
that the President made a public statement on 29 July 2010.
12 The respondents further contend that the review lacks prospects of
success. That was because the “Historical Background” in the report shows
that the amaHlubi were disintegrated before the colonial intrusion and that
they were further depleted by not surviving the Mfecance wars and their
own internal succession disputes.
13 The respondents, with further reference to the prospects of success,
contend that there was no evidence that Langalibalele I succeeded in
restoring the amaHlubi kingship; that the Amahlubi could not claim any
area of jurisdiction or claim senior traditional leaders under the authority
and jurisdiction of Mr Radebe; that the claim before the Commission was
based on a number of traditional leaders who owed allegiance to Mr
6 Radebe, not a claim for kingship based on what the applicants say was
Hlubi land. The respondents further contend that the Commission gave due
weight to all evidence.
In the condonation application for the late filing of the supplementary
founding affidavit
14 The applicants instituted the review on 7 October 2011. They delivered
their supplementary founding affidavit on 15 December 2021. The
applicants say they requested a record of proceedings, which had to have
been despatched by November 2011; they or their attorneys were not
notified of the filing of the record; their current attorneys of record, which
services were obtained “in 2021”, sought and obtained the record from
attorneys for the Commission on 1 July 2021.
15 The applicants say the delay was also due to the applicants having brought
a Rule 30 application after the respondents delivered their answering
affidavit before the applicants had supplemented their papers. That
application was dismissed on 3 February 2020, with the applicants mulcted
with costs. The applicants then pended the review application to raise
funds to pay both their legal representatives and the costs ordered against
them.
16 The applicants say they obtained a copy of the record on 1 July 2021; that
their attorneys wrote to the respondents’ attorneys on 19 August 2021
about outstanding material. They further say that they briefed counsel for
7 advice on supplementing the papers, and that they had retained new
counsel, who required time to get on top of the matter.
17 The applicants contend that the respondents are not prejudiced by the late
delivery of the supplementary affidavit. That is because the respondents
could oppose the amended papers and answer to the supplementary
affidavit.
18 The respondents say the applicants were advised on 26 January 2012 that
the record had been delivered to the Registrar, and that the supplementary
affidavit was due on 9 February 2012. The respondents also say that they
delivered their main answering affidavit on 31 March 2014 when it
appeared that the applicants had no intention of filling a supplementary
affidavit.
19 The respondents filed a Rule 30 application on receipt of the
supplementary affidavit, having taken a view that the supplementary
affidavit was filed nine years late. The application was to have the
supplementary affidavit set aside. The application was heard on 6
September 2022. It was dismissed with costs on 21 November 2022. The
applicants agreed that the respondents would file their further answering
affidavit by 28 February 2023.
20 The respondents deny giving the applicants an incomplete record. The
applicants and their erstwhile attorneys were notified of the delivery of the
record after the record was filed with the Registrar. The respondents
contend that Seanego Attorneys may have received the record on 1 July
8 2021, but that the record had been delivered to the previous attorneys in
January 2012.
21 The respondents pointed out that the applicants did not explain what they
did with the record and that the applicants did not explain what happened
during the period 26 January 2012 and 1 July 2021.
22 The respondents informed the applicants on 4 June 2012 that the
respondents intended to file their answering affidavit because there was no
supplementary affidavit. The applicants filed their supplementary affidavit
more than nine years of being furnished with the record.
In the condonation application for the late filing of the replying affidavit
23 The replying affidavit was due on 15 March 2023. The respondents agreed
that the applicants could file by 31 March 2023. The applicants sought a
further indulgence to deliver the affidavit by 15 April 2023. The
respondents did not agree to this request. The applicants filed the reply on
2 June 2023. They say the affidavit is late by two months. They explained
the delay as detailed below.
24 The applicants say their lead counsel was engaged in a pre -existing matter
of national and public importance and could only settle the draft replying
affidavit on 12 May 2023. The other bases for the delay are that
confirmatory affidavits had to be sought and despatched and collated from
various amakhosi of the Amahlubi; that the applicants reside far from their
attorneys; that the deponent signed the affidavit on 17 May 2023, and
instructed his aides to send the affidavit to the attorneys for filing; that the
9 attorneys advised on 23 May 2023 that the affidavit was defective because
the commissioner of oaths did not ‘initialise’ each page. The applicants say
they were advised to have the commissioner initialise each page or that the
applicants should “re -commission” the affidavit before a different
commissioner of oaths. Mr Radebe deposed to a new affidavit before a
different commissioner of oaths on 31 May 2023.
25 The applicants say the delay was not excessive and that the respondents
are not prejudiced.
Analysis in relation to the condonation application for the late filing of the
review application
26 The grant or otherwise of condonation entails the exercise of a discretion
by the Court. The law was stated long ago in Melane v Santam Insurance Co.
Ltd.,2 namely that:
“[…] Among the facts usually relevant, are the degree of
lateness, the explanation thereof, the prospects of
success and the importance of the case. Ordinarily these
facts are interrelated: they are not individually decisive,
for that would be a piecemeal approach incompatible
with a true discretion, save of course that if there are no
prospects of success there would be no point in granting
condonation.[…]What is needed is an objective
conspectus of all the facts. Thus a slight delay and a good
2 (1962) (4) SA 531 (A), 532 C - E
10 explanation may help to compensate for prospects of
success which are not strong. Or the importance of the
issue and strong prospects of success may tend to
compensate for a long delay. And the respondent’s
interest in finality must not be overlooked […].”
27 The Constitutional Court, in Brummer v Gorfil Brothers Investments (Pty) Ltd
and Others,3 referenced ‘the interest of justice’ as the prism for considering
the grant or otherwise of condonation:
“…an application [for condonation] should be granted if
that is in the interests of justice and refused if it is not.
The interests of justice must be determined by reference
to all relevant factors including the nature of the relief
sought, the extent and cause of the delay, the nature and
cause of any other defect in respect of which
condonation is sought, the effect on the administration
of justice, prejudice and the reasonableness of the
applicant’s explanation for the delay or defect.”4
28 Brummer can be taken as an elaboration on Melane , with the distinction
that Melane does not mention ‘the interests of justice’. The concept is,
however, embedded in the various considerations detailed in Melane. The
“interests of justice” is not a stand -alone criterion with its own attributes. It
3 2000 (2) SA 837 (CC)
4 Brummer, para 3
11 does not operate as a shibboleth to gain passage. It is a qualitative measure,
taking into account the various considerations mentioned in Brummer.
29 The applicants obtained a copy the report which they seek to review in
October 2010. They launched review proceedings on 7 October 2011. They
are required to have instituted review proceedings within 180 days of
October 2010, save with the consent of the respondents to extend the
period. The respondents say there was no agreement to extend the period.
30 The applicants say their review application is late “by almost 6 months”,
counting 180 days from receipt of the report from October 2010, and that
the delay is neither inordinate nor deliberate. The delay from October 2010
to 6 October 2011 is clearly not “almost 6 months.”
31 The applicants say meetings and discussions were held following their
obtaining a copy of the report, and that “no clear agreement could be
reached as of December 2010.” There is no indication of when meetings
and discussions occurred between October 2010 and December 2010;
there are no minutes of what was discussed in those meetings and
discussions; the applicants do not identify persons who attended meetings
and discussions during this period. There is no confirmation of any such
meetings and discussions having taken place. There is no evidentiary
support for anything having taken place in the two months to December
2010 since the applicants obtained a copy of the report. There is thus no
satisfactory explanation of what transpired during this period.
12 32 There is equally no satisfactory explanation for the period January 2011 to
October 2011. There is a non -specific mention of meetings being held,
including a meeting on 5 April 2011. There is the same absence of details
and substantiation as in the two -month period already referred to. The
applicants say they became dissatisfied with the guidance of Bekithemba,
who resigned on 7 May 2011, with a new national working committee
being formed on that date. The averments are not substantiated. No precise
dates are given. There is no elaboration of what it is about Bekithemba that
resulted in the dissatisfaction by the applicants.
33 There is no support that the applicants embarked on efforts to raise funds
following the formation of a new national working committee. No details
are given about such efforts. There is no substantiation, such as
demonstration of whom was approached for funds and when the approach
was made. There is no mention of when the applicants obtained the
services of Mahodi Attorneys, other than a vague reference that their
services were obtained “in 2021.” It is, in any event, untrue that those
services were obtained “in 2021.” Mahodi Attorneys were the applicants’
attorneys of record long before 2021, as shown elsewhere in this
judgement.
34 The applicants make several other unsubstantiated averments. They
include that Mahodi Attorneys instructed counsel to advise on the
prospects of success, and that meetings were held on 8 August 2011 and 12
August 2011 for “finalising the review application.” There are no
confirmatory affidavits or documentation substantiating the averments.
13 35 The applicants also say that the delay was occasioned by their not having a
legible copy of the Commission’s report and that such a copy was sent by e -
mail at the beginning of September 2011. I do not accept this account. The
applicants do not say who sent the report in September 2011. The
applicants obtained a copy of the report in October 2010 from the website
of the fifth respondent (the Department). They do not say that the copy
obtained at that time was illegible. They also do not say that the report was
no longer available on the Department’s website in 2011.
36 I do not accept that there was no delay because the respondents did not
object to a request to extend the 180 -day period. The letter requesting an
extension is dated 22 August 2011. The letter stated, in part, that “On our
consideration as to the time period for the review, it seems that the 180 day
period has elapsed.” There is no mention that there were impediments that
led to expiry of the 180 -day period. There is no mention of why the
application could not have been made on time. The letter also stated that
the applicants would assume that the respondents did not object to the
extension if there was no response to the letter by Friday, 26 August 2011.
37 The following bear remarking about regarding the stated request for an
extension: the applicants sought an extension to file their review
application by 31 August 2011. They did not file their application on that
date. The letter was transmitted to the first, fifth, sixth and seventh
respondents on 22 August 2011, as shown by the respective facsimile
transmission reports. It was not sent to the fourth respondent. The letter
14 was addressed to the second respondent on 13 September 2011.5 The
transmission report records that the letter was faxed at 16:53 and that it
was not delivered. The letter was faxed to the third respondent on 26
August 2011 at 16:27.6 There is thus no credit to the applicants’ contention
that the respondents did not object to extending the 180 -day period.
38 The applicants say they consulted with Mr Mahodi, their attorney, on 8
October 2011, during which the application was finalised. There is no
confirmation by Mr Mahodi.
39 The applicants have not explained the entire period of the delay. This is
borne by the chronology as detailed in the previous paragraphs.
40 Mr Radebe’s explanation for the delay in lodging the review application is
based essentially on his say -so. The founding affidavit has a single
confirmatory affidavit, by Sipho Shadrack Mnguni, who described himself
as the national co -ordinator for the Amahlubi national working committee.
He confirmed those averments by Mr Radebe as relates to him and the
Amahlubi national working committee. Mr Radebe did not say anything
about Mr Mnguni regarding the late filing of the review application. Mr
Radebe made a passing reference to the Amahlubi national working
committee being involved in efforts to secure funds. I do not consider Mr
Mnguni’s confirmatory affidavit to lend credence to the attempted
explanation for the late filing of the review application.
5 The letter was faxed on 13 September 2011. The second respondent was invited to
indicate his attitude to the request by 26 August 2011.
6 The letter was faxed after hours, on the very day when the third respondent was
expected to have indicated his attitude.
15 41 The applicants say they “…have reasonable prospects of success in the
review application as would more fully appear from the grounds for review
elsewhere above and further set out below.” An applicant for condonation
is required to set forth briefly and succinctly such essential information as
may enable the court to assess an applicant's prospects of success.7
42 The applicants do not say how they have reasonable prospects of success.
They merely point to their grounds of review, with no elaboration as to
how those grounds are indicative of prospects of success. The court does
not perform an original assessment of whether the grounds of review are
indicative of prospects of success: the court assesses such prospects with
reference to claims advanced by a litigant, with the court considering the
prospects with reference to such claims. A litigant is not permitted, as in
here, to say they have “reasonable prospects of success” by merely pointing
to the grounds of review. A litigant is required “to set forth briefly and
succinctly such essential information as may enable the court to assess an
applicant's prospects of success.” Every litigant will have shown
“reasonable prospects of success” if all that a litigant had to do was to
mention the grounds of review.
43 I conclude that the applicants have not addressed the requirement for a
showing of “prospects of success” in a condonation application. This is fatal
to their application. I am also persuaded by the respondents’ case that the
applicants have no prospects in the review application. The respondents
elaborated, in opposing the condonation application, as to the respects in
7 Rennie v Kamby Farms (Pty) Ltd 1989(2) SA 124 (A) at 131E
16 which the Commission considered the historical background that led to the
Commission’s conclusion that the amaHlubi were disintegrated before the
colonial intrusion in 1843 and why the amaHlubi did not survive the
Mfecane wars. The Commission also illustrated how the Commission gave
due weight to all evidence, including the Proclamation of 1873, when the
British colonial establishment deposed Langalibalele I.
44 I disagree that there is no material prejudice to respondents, or that any
such prejudice may be compensated by an appropriate order as to costs.
The respondents point out that the review was instituted in 2011, more
than 10 years ago; that they filed their answering affidavit more than 9
years ago; that the applicants filed their supplementary founding affidavit
many years after the date by when that should have been done. More
fundamentally, the respondents say a new commission is in place, so too
new legislation8 and that the relief sought under the Framework Act is no
longer competent. The applicants did not address these considerations.
45 I conclude that the applicants failed to make out a case for the court to
condone the late filing of their review application. The attempted
explanation for the delay is half -hearted. There are multiple unexplained
gaps in the period October 2010 to the filing of the application on 7 October
2021. The explanations for the delay themselves are not cogent. Mr
Radebe’s averments are not substantiated, be that by confirmatory
affidavits or contemporaneous documentation.
8 The Traditional and Khoi -San Leadership Act 3 of 2019.
17 46 The administration of justice is ill -served by litigants who fail to institute
proceedings timeously and prosecute matters with due haste. The legal
regime for the complaints in the review application has changed. The
Framework Act has since been repealed. The Traditional and Khoi -San
Leadership Act 3 of 2019 is the governing statute. The proper
administration of justice does not justify the court entertaining the
application given the changed circumstances. This is a function of the
applicants having been supine in relation to their complaint following the
findings by the Commission.
Analysis in relation to the condonation application in the late filing of the
supplementary founding affidavit
47 The applicants raised the issue of the record as part explanation for their
late filing of the supplementary affidavit. Mr Radebe says that they received
the record on 1 July 2021. This is false, and to the knowledge of Mr Radebe.
48 Mr Radebe deposed to the affidavit in support of a Rule 30 application. That
application was premised, in part, on the applicants’ claim that they were
not given volume 3 of the record, which they said prevented them from
supplementing their papers.
49 The applicants’ Rule 30 application was preceded by various exchanges
between the parties. The applicants do not mention these exchanges in
their review application. These exchanges are important, more so in
relation to the applicants’ complaint that they were not furnished with the
18 record before 1 July 2021. The exchanges show the applicants to have been
economical with the truth.
50 The applicants failed to relay the following important facts to the court.
These facts are gleaned from the applicants’ Rule 30 application. The
applicants served the respondents with a Rule 30 notice on 12 July 2016.
Their grounds of complaint included not having been furnished with
volume 3 of the record. Mr Radebe deposed to the affidavit in support of
the Rule 30 application on 23 August 2016. Mr Radebe, in his affidavit,
referenced the record having been filed with the Registrar on 26 January
2012. He now says, in this application, that the applicants received the
record on 1 July 2021.
51 It is manifest that Mr Radebe was aware on 23 August 2016 that the
respondents had delivered the record by 26 January 2012. Mr Radebe now
says, on oath, that the applicants received the record on 1 July 2021. It is a
grave matter when a deponent lies on oath. This is more so when such a
deponent has had the benefit of advice by attorneys throughout the
litigation.
52 The applicants’ Rule 30 application was not a bona fide complaint. This is
borne by the following uncontested background as relayed by the
respondents in their answer to the applicants’ Rule 30 application. This
background illustrates that the applicants are not being frank with the
court in seeking to rely on their Rule 30 application as a basis for not
delivering their supplementary affidavit on time.
19 53 The respondents produced the record, made up of five volumes, on 26
January 2012. The record included volume 3. The record was delivered to
the applicants’ attorneys and filed with the Registrar. The applicants and
their attorneys acknowledged receipt of the record at the time.
54 There is no obligation on an applicant to supplement their founding
affidavit in review proceedings. The applicants, if so minded, had to
supplement their papers within 10 days of 26 January 2012. The dies for
the delivery of a supplementary affidavit expired on 9 February 2012,
without the applicants supplementing their affidavit. The applicants had
not, by the time of expiry of the dies, raised any concerns about the record.
The applicants were assisted by attorneys throughout. The decision not to
supplement was therefore well -considered.
55 The respondents served their answering affidavit on 27 March 2014, and
filed the affidavit in court on 31 March 2014. This was more than two years
from when the applicants should have supplemented their papers. The
respondents then set the review application down for a hearing on 11
August 2015.
56 The applicants, represented by Mahodi Attorneys, appeared in court on 11
August 2015. They sought a postponement in order to file a supplementary
affidavit. The hearing was postponed, with the applicants ordered to pay
costs on a punitive scale.
57 Mahodi Attorneys, on 15 September 2015, requested further copies of the
record from Commission’s attorneys. This was given to them. The
20 respondents made an error and did not include volume 3, a book by Soga
entitled ‘ The South Eastern Bantu ’. Mahodi Attorneys were advised of the
omission on 15 September 2015 and were invited to collect the material,
which they never did.
58 Attorneys for the respondents wrote several letters to Mahodi Attorneys
following the postponement on 11 August 2015, enquiring about the filing
of the supplementary affidavit. This included an enquiry on 16 October
2015, to which Mahodi Attorneys replied on 26 October 2015 that the
supplementary affidavit was ready for signature by the client and would be
delivered on Friday of the same week. The applicants did not deliver the
affidavit as promised. Attorneys for the respondents wrote several more
letters enquiring about when to expect the supplementary affidavit. This
includes an enquiry on 5 November 2015, to which Mahodi Attorneys
replied that the affidavit will be filed by the second week of December
2015. This too was not done. Mahodi Attorneys later advised that the
affidavit will be filed by 8 February 2016. This was not done.
59 Attorneys for the respondents advised Mahodi Attorneys on 10 February
2016 that the respondents will set the review application down because
there was no supplementary affidavit. Mahodi Attorneys did not respond to
this letter. The respondents then set the review down for a hearing on 25
July 2016. It bears pointing out that 25 July 2016 was almost a year from 11
August 2015, when the applicants sought a postponement to file a
supplementary affidavit. That affidavit remained outstanding.
21 60 Mahodi Attorneys wrote to the respondents’ attorneys on 16 May 2016,
taking issue with the respondents having set the review down for a hearing.
They complained that the applicants had no opportunity to file a
supplementary affidavit. They mentioned the absence of volume 3 of the
record as one of the reasons for the stated inability to file a supplementary
affidavit. The respondents pointed out that Mahodi Attorneys were offered
a copy of volume 3 of the record as far back as September 2015.
61 The applicants, following exchanges referred to above, then served the
respondents with a Rule 30 notice on 12 July 2016. This was 9 days before
the scheduled hearing of the review application on 25 July 2016. BC
Phoswa Inc. were the applicants’ attorneys of record in the Rule 30
application. There is no mention why Mahodi Attorneys were no longer on
record.
62 It is manifest that: the applicants received the record in January 2012. The
record entailed five volumes; the applicants were represented by attorneys
when the record was delivered; the applicants did not complain that the
record was incomplete. The applicants complained about the record for the
first time in their Rule 30 notice, on 12 July 2016.
63 The applicants never complained about the record between 26 January
2012 and 11 July 2016, a period of more than four years. The respondents
gave a chapter and verse account that the applicants received a complete
record, including that the applicants requested and received a further copy
of the record in September 2015. The respondents explained their error in
22 relation to volume 3 of the record and invited the applicants to collect the
document in September 2015. The applicants did not collect the document.
64 It is a grave misrepresentation by Mr Radebe to say on oath that the
applicants and their attorneys never received nor were notified of the
record before 1 July 2021. Mr Radebe knew this to be false. He deposed to
an affidavit on 23 August 2016, in which he mentioned that the
respondents had filed the record with the Registrar on 26 January 2012.
65 Apart from seeking to mislead the court, there is simply no cogent reason
why the applicants did not file a supplementary affidavit once the record
was made available on 26 January 2012. It is unacceptable for the
applicants to also say that they could not file a supplementary affidavit
because of their Rule 30 application in relation to the answering affidavit
by the respondents: they served the Rule 30 notice on 12 July 2016. The
applicants did not complain about the record before 12 July 2016.
66 The Rule 30 application was dismissed on 3 February 2020. Mr Radebe
deposed to the supplementary founding affidavit on 14 December 2021.
There is no proper accounting of what happened between 3 February 2020
and 14 December 2021, a period of almost two years.
67 The respondents filed their initial answering affidavit because the
applicants were not supplementing their papers. The applicants had, in any
event, lost their right to supplement their founding affidavit after expiry of
the 10 -day period following delivery of the record on 26 January 2012. The
23 applicants could file a supplementary affidavit after that period not as a
matter of right, but only on the court having granted them leave to do so.
68 The applicants are required to have explained the whole period of the
delay.9 They did not. This is apart from the applicants misleading the court
by not placing relevant facts before the court. They served a Rule 30 notice
within days of the scheduled hearing of the review application which the
respondents had set down. This notice was given some two months after
Mahodi Attorneys’ half -hearted complaint, with nothing done in the
interim. It is not a surprise that that application was dismissed, with the
applicants mulcted with costs.
69 The applicants are required, in seeking condonation, to address the
prospects of success.10 The condonation application for the late filing of the
supplementary affidavit does not address the prospects of success. The
omission is fatal to the application.
Analysis in relation to the condonation application in the late filing of the
replying affidavit
70 The applicants’ case for condonation is wholly unsatisfactory. They sought
an indulgence to file their replying affidavit by 31 March 2023. This
deadline must have been determined with counsel’s diary in mind. The
applicants do not say why they could not meet this deadline. The applicants
do not explain why they sought a further indulgence to file on 15 April
2023 if lead counsel could only settle the papers on 12 May 2023. The date
9 Van Wyk v Unitas Hospital and Another 2008 (2) SA 472 (CC), para 22
10 Brummer, para 3
24 of 15 April 2023 must also have been considered with counsel’s diary in
mind.
71 The Court is invited to accept the delay in part because the applicants’ lead
counsel is said to have been engaged in “a pre -existing matter of national
and public importance.” The applicants thus briefed counsel knowing that
counsel had a pre -existing matter. The court is also expected to accept the
explanation with no details of the stated matter. There is no confirmation,
in any event, that counsel was so involved. The attorney would be expected
to confirm on oath as to the unavailability of counsel. That is because
counsel is ordinarily excused from deposing to affidavits.
72 There is no explanation why lead counsel was only able to settle the papers
on 12 May 2023. The request for an extension on 14 March 2023 for the
applicants to file their reply on 31 March 2024 does not mention the
unavailability of counsel as the reason for an extension. On the country. The
applicants’ attorneys stated in the 14 March 2023 request that “Please note
that our counsel team is still working on the replying affidavit. We hereby
request you (sic) indulgence to file our clients' replying affidavit on Friday,
31 March 2023."
73 The applicants’ request to file on 15 April 2023, made on 31 March 2023,
similarly did not mention counsel's unavailability as a reason for not filing a
replying affidavit on time. The attorneys wrote that "Unfortunately, our
Counsel team is still working on the replying affidavit and same will not be
ready for filing today. We hereby request a further extension until 15 April
2023 to file our clients' replying affidavit." It follows on this
25 correspondence that counsel were available to consider the papers and for
the replying affidavit to be filed by 15 April 2023. Contemporaneous
documents do not support the averment that the reply could not be filed on
time because counsel were unavailable.
74 There is no confirmation that Mr Radebe was advised that the affidavit of
17 May 2023 was defective. There is no explanation for the lack of any
confirmatory affidavit to the replying affidavit. The applicants have been
represented by attorneys, who are well -aware of the law on hearsay
evidence, and the need for confirmatory affidavits in that regard.
75 I do not accept that the obtaining of confirmatory affidavits from the
amakhosi contributed to the delay in the filing of the replying affidavit.
Those confirmatory affidavits have nothing to do with the replying
affidavit. That is because the deponents to those affidavits say they confirm
the averment in paragraph 41.6 of the "supplementary founding affidavit"
regarding payment of allegiance to the king.
76 I should also point out that there is, in fact, no confirmatory affidavit to the
replying affidavit. That is because Mr Radebe disavowed the affidavit of 17
May 2023 for the affidavit deposed to on 31 May 2023. The affidavit of 31
May 2023 has no confirmatory affidavits.
77 The applicants’ explanation for the delay in filing their replying affidavit is,
as stated above, unsatisfactory. The applicants do not deal with the
prospects of success. A condonation application that does not address the
prospects of success is fatally defective.
26 Conclusion:
78 The applicants launched the review application on 7 October 2011. The
application was heard on 18 October 2024, more than 13 years later. The
application is to review a decision by the first respondent. The first
respondent no longer existed in law when the review was heard. The
legislation in terms of which the applicants premised their case had been
repealed when the matter was argued.
79 The delay by the applicants is egregious. The applicants were not frank
with the court as regards the history of the litigation. Mr Radebe told
untruths on oath. The administration of justice will be ill -served if the court
were to entertain the application, given the various short -comings as
detailed above. I therefore refuse the application for the late filing of the
review, as already indicated above.
80 I refused condonation for the late filing of the review application. It was
therefore, strictly considered, unnecessary to address the condonation
applications in relation to the supplementary founding affidavit and the
replying affidavit. That was done for the sake of completeness.
81 I make the following order:
(1) The application is dismissed.
(2) The applicants are ordered to pay costs, including the costs of two
senior counsel, on scale C.
O Mooki
Judge of the High Court
Gauteng Division, Pretoria
27 Counsel for the applicants: B Shabalala (together with S Mohapi)
Instructed by: Seanego Attorneys Inc.
Counsel for the first, N Arendse SC (together with ZZ Matebese SC)
second and fifth respondents:
Instructed by: Bhadrish Daya Attorneys
Date heard: 18 October 2024
Date of judgement: 21 January 2025