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[2020] ZASCA 176
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Thobejane and Others v Premier of the Limpopo Province and Another (1108/2019) [2020] ZASCA 176 (18 December 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case No: 1108/2019
In the matter
between:
MOREKWA FRANCINAH
THOBEJANE FIRST
APPELLANT
MASEBOTI SIMON
PHOLWANE SECOND
APPELLANT
CEDRICK PHOLOSHI
MOGOBA THIRD
APPELLANT
MOLOHLANYE
WILLIAM PHALA FOURTH
APPELLANT
KGOLANE DAPHNEY
THOBEJANE FIFTH
APPELLANT
and
PREMIER OF
LIMPOPO PROVINCE
FIRST RESPONDENT
MEC FOR
TRADITIONAL AFFAIRS OF
LIMPOPO
PROVINCE SECOND
RESPONDENT
Neutral
citation:
Thobejane
and Others v Premier of the Limpopo Province and Another
(Case no 1108/2019)
[2020] ZASCA 176
(18 December 2020)
Coram:
PETSE DP, ZONDI and
MAKGOKA JJA and MABINDLA-BOQWANA and POYO-DLWATI AJJA
Heard:
23 November 2020
Delivered:
This judgment was
handed down electronically by circulation to the parties’
representatives by email, and by publication on
the Supreme Court of
Appeal website and release to SAFLII. The time and date for hand down
is deemed to be 10h00 on the 18
th
day of December 2020.
Summary:
Civil procedure –
court ruling on preliminary point and later reversing its own order –
court
functus
officio
and the
second order is incompetent and a nullity – jurisdiction of the
Supreme Court of Appeal (the SCA) – not triggered
where high
court had not given judgment or order on the issue sought to be
argued on appeal – no discernable reason why leave
to appeal
was granted to the SCA.
ORDER
On appeal from:
Limpopo High Court, Polokwane (Semenya J sitting as court of first
instance):
1 The appeal is
upheld with no order as to costs.
2 The order of the
high court dated 17 May 2019 is set aside.
3
The matter is remitted to the high court to determine the merits of
the review application.
JUDGMENT
Makgoka
JA (Petse DP and Zondi JA and Mabindla-Boqwana and Poyo-Dlwati AJJA
concurring):
[1]
This
appeal concerns two mutually exclusive orders issued by the same
judge in respect of the same issue. The first to fifth appellants
had
launched an application in the Limpopo High Court, Polokwane (the
high court) seeking to review and set aside the decision
of the
respondents, the Premier of Limpopo (the Premier) and the Member of
the Executive Committee for Traditional Affairs, Limpopo
(the MEC),
not to recognise them as traditional leaders
[1]
of
the Tjatje Community (the community) in Limpopo. The appellants
sought an order compelling the respondents to do so. In their
opposition to the relief sought by the appellants, the respondents
raised a two-pronged preliminary point of non-joinder. They
averred
that the appellants had failed to join two parties, whom, according
to the respondents, had a direct and substantial interest
in the
relief sought by the appellants.
[2]
The first of the
parties alleged to have such interest was the Commission on
Traditional Leadership Disputes and Claims of the Limpopo
Provincial
Committee (the Commission), which had investigated the disputes about
traditional leadership in the community. The first
respondent’s
decision not to recognise the appellants as traditional leaders was
based on the report of the Commission. The
respondents also contended
that a structure which was in control of community, the
Marota-Mohlaletsi Traditional Council, ought
also to have been joined
in the proceedings.
[3]
The application
came before Semenya J on 24 April 2019. After hearing arguments on
the preliminary point referred to above, the
learned Judge made the
following ruling:
‘
The
application before me relates to the [re]view of the decision made by
the Premier in this matter, the decision which [he] has
exercised or
supposed to have been exercised in terms of section 12 of the Act and
I agree with the applicant[s] that it was not
necessary for the
applicant[s] to join the parties that are supposed to… that
the respondent[s] says should have been join[ed]
in this matter. I do
not see how they have a substantial interest in the outcome of this
application. The points in limine are
therefore dismissed.’
[4]
The preliminary
point having been dismissed, the parties argued the merits of the
review application before the learned Judge, after
which she reserved
judgment. On 17 May 2019 Semenya J delivered judgment. In paragraph 2
thereof, she revisited the respondents’
preliminary point of
non-joinder referred to earlier. Why she did so is, however, nowhere
explained in her judgment. The learned
Judge took the view that in
respect of the Commission, no purpose would be served by considering
whether it should be joined as
a party to the proceedings as it had
since dissolved. She proceeded to consider the averred non-joinder of
the traditional council,
at the end of which she concluded as
follows:
‘
The
respondents’ second point in limine that the applicants’
failure to join the Marota-Mohlaletsi Traditional Council
constitutes
a misjoinder
[2]
is
upheld.’
The
learned Judge accordingly struck the application from the roll with
costs, but subsequently, issued an order granting leave
to the
appellants to appeal to this Court.
[5]
Before
I consider the parties’ submissions in this Court, it is
prudent to first determine whether the order of 24 April 2019
dismissing the respondents’ preliminary point of non-joinder,
was final in effect. In
Zweni
v Minister of Law and Order
[3]
it
was held that an order that is final in effect has three attributes:
first, the decision must be final in effect and not susceptible
to
alteration by the court that made it; second, it must be definitive
of the rights of the parties; and third, it must have the
effect of
disposing of at least a substantial portion of the relief claimed in
the main proceedings. There are no conceptual difficulties
with
regard to the first two. As to the third attribute, the question is
whether the ‘relief claimed’ is restricted
to the relief
claimed by the plaintiff/applicant. In
Caroluskraal
Farms v Eerste Nasionale Bank
[4]
it
was
held
that it includes the relief claimed by the defendant/respondent in
the form of special pleas and preliminary points.
Therefore,
in the context of the present case, the dismissal of the respondents’
preliminary point thus disposes of a substantial
portion of the
relief sought.
[5]
[6]
Viewed
in light of the above, the order of 24 April 2019 in respect of the
preliminary point, indubitably had all three of the
Zweni
attributes.
Accordingly, the high court was not competent to revisit it. As
explained in
Firestone
v Genticuro
,
[6]
as
a general rule, a court has no power to set aside or alter its own
final order, as opposed to an interim or interlocutory order,
for two
reasons. First, once a court has pronounced a final judgment, it
becomes
functus
officio
as
its authority over the subject matter ceases. The second is the
principle of finality of litigation, it being in the public
interest
that litigation be brought to finality.
[7]
[7]
Thus, counsel
for the parties agreed that the court a quo’s order of 17 May
2019 constituted a nullity, which falls to be
set aside. They parted
ways, however, on the further conduct of the matter. On the one hand,
counsel for the respondents submitted
that the matter should be
remitted to the high court for that court to give judgment on the
merits of the application. On the other,
it was submitted on behalf
of the appellants that this Court should itself determine the merits
of the review application, as,
so went the argument, this Court is in
as good a position as the high court to do so. Counsel further
submitted that should the
merits be decided in the appellants’
favour, we should substitute the Premier’s decision with our
own, in terms of
which the appellants are recognised as traditional
leaders, instead of remitting the matter to the Premier for
reconsideration.
[8]
The path
suggested by the appellants faces two insurmountable obstacles.
First, this Court’s jurisdiction to determine the
merits has
not been triggered.
The
high court made no findings on the merits, and strictly confined
itself to the preliminary point of non-joinder. This is unlike
a case
where the high court, in its ruling on the preliminary point, had
given an indication that it was inclined to dismiss the
application.
Under those circumstances, it could conceivably be contended that the
outcome is a foregone conclusion.
[9]
That
cannot be said to be the case here.
The
substantive issues in dispute have not been decided by the high
court, and consequently, no leave to appeal has been granted
in
respect of those issues. Differently put, until the high court
pronounces on the substantive issues relating to the right of
the
appellants to be appointed as traditional leaders, and leave is
granted to this Court, this Court has no jurisdiction to consider
the
merits of the review application. Were we to do so, we would
impermissibly usurp the function of the high court to ordinarily
sit
and pronounce as a court of first instance.
[10]
In
Theron
v Loubser
[8]
this
Court had occasion to consider a similar situation. There, the
respondents had raised a preliminary point that the applicants
lacked
the necessary locus standi to bring the three applications before
court. The high court had upheld the respondents’
preliminary
point in two of the applications.
It
dismissed
the applications on that ground alone, and deemed it
not
necessary to consider the merits of the applications.
On appeal, this Court reversed the high court’s finding on
locus standi but declined to consider the merits of the applications.
Instead, it remitted the matter to the high court. With reference to
Caroluskraal
v Eerste Nasionale Bank
this
Court reasoned as follows (at para 21):
‘
The
entire record of the proceedings did not serve before this court on
appeal. The record came to be limited by agreement between
the
parties in the light of the solitary issue that had been decided by
the high court and which, in turn, required determination
on appeal.
But even if the full record had served before us, the high court had
declined to enter into a consideration of any of
the other issues in
the application. This court has thus been deprived of the benefit of
the high court’s view on any of
those issues. In the result
this court will in effect be sitting both as a court of first
instance, as also, a court of appeal
insofar as those issues are
concerned. It follows that the matter has to be remitted to the high
court for a determination of each
of the two applications which are
the subject of this appeal. In the event, it was agreed from the bar
in this court that that
course should be adopted. For the rest, it
will be left to the Judge President of the Western Cape High Court to
issue directions
to the parties as to the further conduct of the
matter in that court.’
The
second obstacle is that a substitution order is not to be lightly
made, and a court would adopt such a course only in exceptional
circumstances. Pursuant to an administrative review under s
6
of the
Promotion of Administrative Justice Act 3 of 2000
and
once administrative action is set aside,
s 8(1)
affords courts a wide
discretion to grant ‘any order that is just and equitable’.
In exceptional circumstances,
s 8(1)
(c)
(ii)(aa)
affords a court the discretion to make a substitution order. In
Trencon
v IDC
[9]
the
Constitutional Court explained how an order of substitution should be
considered:
‘
[G]iven
the doctrine of separation of powers, in conducting this enquiry
there are certain factors that should inevitably hold greater
weight.
The first is whether a court is in as good a position as the
administrator to make the decision. The second is whether
the
decision of an administrator is a foregone conclusion. These two
factors must be considered cumulatively. Thereafter,
a court
should still consider other relevant factors. These may include
delay, bias or the incompetence of an administrator. The
ultimate consideration is whether a substitution order is just and
equitable. This will involve a consideration of fairness to
all
implicated parties. It is prudent to emphasise that the
exceptional circumstances enquiry requires an examination of each
matter on a case-by-case basis that accounts for all relevant facts
and circumstances.’
[11]
In the present
case, I am by no means persuaded that we are in as good a position as
the Premier to substitute our own decision.
From even a cursory
reading of the papers, there are a number of issues that would seek
further clarification. One springs to mind,
and it relates to the
position of Mr Nthobeng Thobejane, the community’s current
headman, who is said to be mentally challenged,
but continues to
receive a stipend from the provincial government in that capacity.
His position must be clarified, and possibly,
he might have to be
joined as a party to the proceedings, as the order sought by the
appellants appears to have a direct bearing
on him. As to the
decision of the Premier, there is no suggestion before us that such
is a foregone conclusion, or that it is tainted
by bias, incompetence
or malice. Given these considerations, I discern no exceptional
circumstances to move this Court to make
a substitution order.
[12]
The matter must
in all circumstances be remitted to the high court to determine the
merits of the review application. We were informed
during the hearing
that the first appellant has since died. This should have no effect
on the order for remittal to the high court.
If that court determines
that she was entitled to be appointed as Kgoshigadi, her natural
successor would surely be substituted
for her.
[13]
There remains
the issue of costs. Counsel for the appellants pressed for costs
against the respondents on the basis that the appellants
would have
achieved substantial success in this Court were the order of 17 May
2019 to be set aside. On the other hand, counsel
for the respondents
pointed out that in their notice of appeal and in their heads of
argument, the appellants, not only sought
to set aside that order,
but also urged this Court to consider the merits. Thus, so went the
submission, the respondents were duty
bound to oppose the appeal to
the extent the appellants persisted with the latter relief. In my
view, there is something to be
said about this submission. Had the
appellants simply confined themselves to the attack on the impugned
order, and not sought to
have the merits determined by this Court,
the appeal would probably have been unopposed. In the circumstances
it would only be
fair to make no order as to costs.
[14]
Before
I conclude, I am constrained to comment on the high court’s
decision to grant leave to this Court. That leave to appeal
was
correctly granted is beyond question. The high court recognised the
irregularity of its order of 17 May 2019. But as to why
leave was
granted to this Court, escapes me. There is nothing in the issues
canvassed here which even remotely warrants the attention
of this
Court.
No
controversial legal principle was involved
.
As this Court pointed out in
Shoprite
Checkers v Bumpers Schwarmas
,
[10]
the
inappropriate granting of leave to appeal to this court increases the
litigants’ costs and results in cases involving
greater
difficulty and which are truly deserving of the attention of this
court having to compete for a place on the court’s
roll with a
case which is not.
This
must be deprecated.
[15]
The following
order is made:
1 The appeal is
upheld with no order as to costs.
2 The order of the
high court dated 17 May 2019 is set aside.
3
The matter is remitted to the high court to determine the merits of
the review application.
____________________
T M Makgoka
Judge
of Appeal
APPEARANCES:
For
Appellants:
J L Griffiths
Instructed
by:
Eiser & Kantor,
Johannesburg
Lovius
Block, Bloemfontein.
For
Respondents:
P M Maake
Instructed by:
State Attorney, Polokwane
State
Attorney, Bloemfontein.
[1]
The first appellant sought recognition as Khoshigadi (Chieftainess);
the second to fourth appellants as headmen, respectively,
and the
fifth appellant as a headwoman.
[2]
Presumably the learned judge meant ‘non-joinder’.
[3]
Zweni
v Minister of Law and Order
[1993]
1 All SA 365
(A);
1993 (1) SA 523
(A) at 536B
.
Zweni
has undergone some modification over the years. See for example
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
1996 (3) SA 1
(A);
Philani-Ma-Afrika
and Others v Mailula
and
Others
[2009] ZASCA 115
;
[2010] 1 All SA 459
(SCA);
2010 (2) SA 573
(SCA);
Nova
Property Group Holdings Limited v Cobbett and Others
[2016] ZASCA 63
;
[2016] 3 All SA 32
(SCA);
2016 (4) SA 317
(SCA).
However, none of these find application in this case.
[4]
See
Caroluskraal
Farms (Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk, Red
Head Boer Goat (Edms) Bpk v Eerste Nasionale
Bank van Suider-Afrika
Bpk; Sleutelfontein (Edms) Bpk v Eerste Nasionale Bank van
Suider-Afrika Bpk
[1994] ZASCA 23
;
1994
(3) SA 407
(A) at 415B-416A;
Durban’s
Water Wonderland (Pty) Ltd v Botha and Another
[1999]
1 All SA 411
(A);
1999 (1) SA 982
(SCA)
at 992G-H
;
Ndlovu
v Santam Ltd
2006 (2) SA 239
(SCA) para 9.
[5]
Compare
Limpopo
Legal Solutions v Vhembe District Municipality and Others
[2017] ZACC 30
;
2018 (4) BCLR 430
(CC)
para
10.
[6]
Firestone
South
Africa (Pty) Ltd v Genticuro AG
[1977]
4 All SA 600
(A);
1977 (4) SA 298
(A) at 306F-G and 309A.
[7]
See
also
Minister
of Justice v Ntuli
[1997] ZACC 7
;
1997
(2) SACR 19
(CC);
1997 (6) BCLR 677
(CC);
1997 (3) SA 772
(CC)
paras 22 and 29;
Zondi
v MEC, Traditional and Local Government Affairs and Others
2006
(3) BCLR 423
(CC); 2006 (3) 1 (CC) para 28;
Freedom
Stationery
(Pty)
Limited and Others v Hassam and Others
[2018] ZASCA 170
;
2019 (4) SA 459
(SCA)
para
16.
[8]
Theron
NO and Another v Loubser NO and Others, In Re: Theron N.O and
Another v Loubser and Others
[2013] ZASCA 195; [2014] 1 All SA 460 (SCA); 2014 (3) SA 323 (SCA).
[9]
Trencon
Construction (Pty) Limited v Industrial Development Corporation of
South Africa Limited and Another
[2015] ZACC 22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR 1199
(CC)
para
47.
[10]
Shoprite
Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others
[2003]
ZASCA 57
;
[2003] 3 All SA 123
(SCA) para 23. See also
S
v Monyane and Others
[2006] ZASCA 113
;
2008 (1) SACR 543
(SCA) para 28.