REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
CASE NUMBER: 12970/2022
(1)
(2)
(3) REPORTAB LE: ~NO
OF INTEREST TO THE JUDGES: ~NO
REVISED.
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DATE 30 June 2025 SIGNATURE ............................. .
In the matter between:
LETUANA JOSEPH RATAU
BAROKA BA RATAU TRADITIONAL COUNCIL
BAROKA BA RATAU ROYAL FAMILY
-and-
PREMIER: LIMPOPO PROVINCE
MEMBER OF THE EXECUTIVE COUNCIL CO
OPERATIVE GOVERNANCE , HUMAN SETTLEMENT
AND TRADITIONAL AFFAIRS 1 ST APPLICANT
2No APPLICANT
3RD APPLICANT
1sr RESPONDENT
2ND RESPONDENT
2
THE COMMISSION ON TRADITIONAL LEADERSHIP
DISPUTES AND CLAIMS (CTLDC)
THE LIMPOPO PROVINCIAL COMMITTEE ON
TRADITIONAL LEADERSHIP DISPUTES AND CLAIMS
THE NATIONAL MINISTER OF CO-OPERATIVE
GOVERNANCE AND TRADITIONAL AFFAIRS
LIMPOPO HOUSE OF TRADITIONAL LEADERS
Delivered 30 June 2025 3RD RESPONDENT
4TH RESPONDENT
5TH RESPONDENT
6TH RESPONDENT
This judgment was handed down electronically by circulation to
the parties' legal representatives by e-mail. The date and time
for hand down of the judgment is deemed to be 30 June 2025 at
10:00 am.
Date heard
Coram
BRESLER AJ:
Introduction: 4 April 2025
Bresler AJ
JUDGMENT
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[1] The Applicants apply for the review and setting aside of the decision of the Premier,
Limpopo (the First Responden t) not to recognise the First Applicant as Traditional
Leader and the Second Applicant as Traditional community. The impugned
decision was made on or about the 13th of October 2015.
[2] The Applicants submit that the failure by the First Respondent is reviewable on the
following grounds:
2.1 The failure to recognise the First Applicant must be reviewed and set aside
as the Applicants have now complied with the findings and
recommenda tions and procured a resolution from the Third Applicant.
2.2 Likewise, the Applicants have now provided the resolution from the Third
Applicant which was the outstanding requirement for recognition as a
traditional community.
[3] The Applicants also apply for condonation for the late delivery of their amended
Notice of motion and Supplementary affidavit. Same was delivered some 20
(twenty) days out of time and after receipt of the record from the Respondents.
[4] It is apposite to note that the initial Notice of Motion referred to the First
Respondent's decision to decline the First Applicant's claim for recognition of the
senior traditional leader titled 'L/19/59'. This Notice of Motion also applies for a
substitution of the decision with a decision to the effect that both the Traditional
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Community and the Traditional Leader is recognised accordingly. The Founding
affidavit makes it clear that the review is launched under the auspices of the Section
33 of the Constitution , 1996, and Section 6 of the Promotion of Administrative
Justice Act, Act 3 of 2000 (PAJA).
[5] The amended Notice of Motion provides for declaratory relief and the substitution of
the Respondents ' failure to issue a certificate of recognition with an order directing
the issuing of the said certificate in accordance with the resolution taken by the Third
Applicant on the 20th of September 2020. The Supplementary affidavit states that
the Applicants do not solely rely on PAJA but furthermore submit that the
Respondents' failure to issue the certificate is reviewable on the principle of legality.
The Supplementary affidavit also deals extensively with the First Applicant's right to
be recognised having regard to his familial history.
[6] The First to Sixth Respondents opposed the application. The Respondents stated
that the impugned decision was already taken on the 13th of October 2015. The
said impugned decision was therefore not challenged within a reasonable time, or
more specifically , within 180 days as contemplated in PAJA. No explanation was
provided for the delay in instituting the proceedings.
[7] This purported delay of approximately 7 (seven) years is deemed to be fatal to the
Applicants' case, according to the Respondent.
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Factual synopsis:
[8] The facts insofar as they may be relevant to the current proceedings , are common
cause between the parties.
[9] On the 4th of October 2011, the First Applicant applied for recognition of the Baroka
Ba Ratau Community as a Traditional Community and for himself to recognised as
their senior traditiona l in terms of Section 3(2) of the Limpopo Traditional
Leadership and Institutions Act, Act 6 of 2005.
[1 O] Upon finalisation of the investigation, the Commiss ion (the Third Respondent ) made
the following findings:
10.1 There appears to be a prima facie case for the existence of the chieftainship
of Baroka Ba Ratau.
10.2 That the commission is unable to make a finding of the existence of the
dispute since there is no evidence of any opposition.
10.3 That it is not within the competence of the Commiss ion to recognise or
promote any person to the position of traditional leadership since this power
resides with the Councillors' discretion.
[11] It was furthermore recommended that:
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6.1 The status quo ante be maintained as the position of the incumbent Chief
Letuwana Joseph Ratau Ill is uncontested; and
6.2 It is unnecessary to issue a certificate of recognition of his status since,
traditionally speaking, such certificate is not a pre-condition for
chieftainship.
[12] On the 13th of October 2015, the First Applicant was informed by the office of the
First Responden t that the application for recognition as traditional leader and
traditional community was declined. The reason submitted for the refusal of the
application was the absence of a resolution from the Royal Family (the Third
Respondent ).
[13] On or about the 9th of September 2020, the Third Respondent took a resolution and
identified the First Applicant as a senior traditional leader. The resolution was
received by the First Responden t on the 23rd of April 2021.
Issues that require determin ation:
[14] This Court is only called upon to determine if the relief, as contemplated in the
amended Notice of Motion, should be granted. In this Court's view, the two
predominant aspects that stands to be determined is if a cause of action has been
properly identified, and if so, if the delay in instituting the review proceedings is
reasonable .
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The Applicable Legal Principle s:
[15] As stated herein before, the Applicants have raised the issue in their initial Founding
affidavit that the cause of action is premised on PAJA. The factual basis was stated
to be the resolution taken by the Third Applicant on the 9th of September 2020.
[16] The default pathway to review is PAJA. Very few cases for review involves a direct
application of the Constitution. PAJA was enacted specifically to give effect to the
rights enshrined in Section 33 of the Constitution. In Minister of Health v New
Clicks South Africa (Pty) Ltd1, PAJA was described as 'clearly intended to be,
and in substance , a codification of these rights'. The common law is therefore
displaced by PAJA.
[17] In Batho Star Fishing (Pty) Ltd v Minister of Environment al Affairs2 the
Constitutional Court stated that the cause of action for judicial review of
administrative action now ordinarily arises from PAJA and not from the common
law as in the past. O'Regan J also remarked that the authority of PAJA to ground
such causes of action rests squarely on the Constitution, but this does not
presuppose that a party may circumvent the provisions of the Act by direct reliance
on Section 33 of the Constitution.
1 2006 (2) SA 311 (CC) at para 96
2 2004 (4) SA 490 (CC) at para 25
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[18] In Mazibuko v City of Johannesburg3 the Constitutional Court reaffirmed the
principle that, where legislation has been enacted to give effect to a right, a litigant
should rely on that legislation to give effect to the right or alternatively challenge the
legislation as being inconsistent with PAJA.
[19] This Court is of the view that the principle of legality can only apply if the provisions
of PAJA do not apply, for instance in cases where the conduct does not resort to
administrative action or is not defined as administrative action in terms of PAJA.
The principle is often applied where an administrator self-reviews its own decision.
The Applicants' reliance on the principle of legality is thus misplaced.
[20] It must further be borne in mind that lawfulness stands at the core of the principle of
legality. The administrative action must therefore be compared to the empowering
provision to determine if its lawful. In casu no case is made out that, once decision
is made, the First Responden t may, or must, vary or withdraw its decision should
new facts come to light. Under the common law, the issue arose within the context
of the functus officio doctrine, which dictated when an administrator could vary a
decision. In essence, an administrator can vary (self-review) their own decision if
the administrator is authorised to do so in terms of the empowering legislation. An
evident example is the right of a Magistrate to reconsider the issue of bail subject to
new facts being presented.
[21] The basis of the Applicants' review is the fact that the new facts were at hand (initial
Founding affidavit) and that the First Respondent failed to vary its initial decision
3 2010 (4) SA 1 (CC) at para 73
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taken in 2015, premised on the new information. No case is however made out that
the First Respondent had the authority and power to self-review under these
circumstances and in terms of the empowering legislation. The First Respondent 's
purported refusal to issue the certificate was therefore lawful.
[22] Insofar as the review is premised on the principle of legality, it cannot succeed for
these reasons.
[23] As to the allegation that the review is premised on PAJA, this Court finds it difficult
to ascertain the extent of the reliance on the Act. The courts have reiterated that
when applying PAJA, litigants should disclose their cause of action by specifying
which provisions of the statute are being relied upon. While in Batho Star supra
the Court was prepared to overlook a failure to properly disclose the cause of action
with reference to PAJA, O'Reagan J emphasised that it is desirable for litigants who
seek to review administrative action, to identify clearly both the facts upon which
they base their cause of action and the legal basis of their cause of action.
[24] The Applicants dismally fail in this regard. The initial Notice of Motion and Founding
affidavit makes no mention of any specific provisions of PAJA relied upon.
Likewise, the Amended Notice of Motion and the Supplementary affidavit, only
makes general mention of the First Respondent's failure to take and implemen t a
decision as contemplated in Section 6(2)(g) of PAJA. It must again be noted that
no case is made out that the First Responden t has a duty to self-review when new
facts are at hand. The empowering legislation simply does not contemplate such a
power of self-review.
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[25] On these grounds, the application has no merit or prospect of success. The
prospect of success is one of the factors that the court should consider in
determining if the 180-day period, contemplated in Section 9 of PAJA should be
extended.
[26] The Respondents have dealt with the delay in instituting the proceedings , and the
applicable authorities in that regard, in detail. The law pertaining to the launch of
review proceedings within a reasonab le time are trite. In the case of Chairperson,
Standing Tender Committee and Others v JFE Sapela Electronics (Pty) Ltd
and Others4 the Supreme Court of Appeal reiterated that the prosecution of a
review within a reasonab le time is to avoid prejudice to the Respondents , and to
promote public interest in reaching finality on the status of administrative acts, on
grounds of pragmatism and practicality. In Mostert NO v Registrar of Pension
Funds and Others5 it was held that the period of 180 days may be extended for a
fixed period by agreement between the parties, or failing such agreemen t, by a court
on application by the person or administrator concerned. Such application may be
granted where the interests of justice so require.
[27] In the absence of any prospect of success on the merits, it would serve no purpose
to extend the period of 180 days. The delay in institution the proceedings is thus
fatal to the Applicants case.
[28] Safe for the aforesaid, the Applicants have also dismally failed to explain their delay
with sufficient particularity for the Court to determine how it came about.
4 2008 (2) SA 638 (SCA) at 650D -E
5 2018 (2) SA 53 (SCA) at para 13
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Costs:
[29] It is trite law that a private party should not be mulcted in costs where that party
raises a genuine and substantive argument vindicating constitutional rights or where
the party seeks to hold an organ of state accountable and compel such organ of
state to fulfil its constitutiona l or statutory responsibilities. This rule is not inflexible,
and a departure is warranted where litigation is frivolous or vexatious. The ultimate
goal is to do that which is just having regard to the facts and circumstances of the
case.6
[30] This matter is one where the well-known Biowatch7 principle ought to be applied.
Order: Although the Applicants are not successfu l in their review, their failure is a result of
a misdirection in law. The Applicants were genuinely endeavouring to vindicate
their constitutiona l right to just administrative action. On this basis, it would be just
and equitable if each party is ordered to pay its own costs.
[31] In the result the following order is made:
31.1 The application is dismissed;
6 Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC)
7 Biowatch v Registrar, Genetic Resources 2009 (6) SA 232 (CC)
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31.2 Each party is ordered to pay its own costs.
APPEARANCES:
FOR THE APPLICANTS
INSTRUCTED BY
FOR THE FIRST TO SIXTH
RESPONDENTS
INSTRUCTED BY M BRESLERAJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION , POLOKWANE
Adv. M Rasesemola
KN Maleka Attorneys Inc
Polokwane
admin@knmattorneys.co.za
katlegonathaniel14@gmail.com
Adv. T Tshitereke
Adv. MS Pholo
State Attorney
Polokwane
Nlmohale@justice.qov.za