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2025
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[2025] ZAMPMBHC 41
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Chaane v Chaane and Others (2784/2020) [2025] ZAMPMBHC 41 (16 May 2025)
IN
THE HIGH COURT OF SOUTH AFRICA, MPUMALANGA DIVISION,
(MBOMBELA MAIN SEAT)
Case No.: 2784/2020
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED
YES/NO
DATE 16-5-2025
FOURIE AJ
SIGNATURE
In
the application between:
STEPHEN
MAKOE
CHAANE
APPLICANT
and
EDWARD
PHOPOLO CHAANE
FIRST RESPONDENT
CHAANE
ROYAL FAMILY
SECOND RESPONDENT
PREMIER
OF THE MPUMALANGA PROVINCE
THIRD RESPONDENT
MEC
FOR LOCAL GOVERNANCE AND
FOURTH RESPONDENT
TRADITIONAL
AFFAIRS
CHAIRPERSON
OF THE HOUSE OF
FIFTH RESPONDENT
TRADITIONAL
LEADERS, MPUMALANGA
MPUMALANGA
COMMISSION ON TRADITIONAL
SIXTH RESPONDENT
LEADERSHIP
DISPUTES AND CLAIMS
JUDGMENT
FOURIE AJ
INTRODUCTION:
[1]
The Applicant in the current application makes an application under
the auspices
of the Promotion of Administrative Justice Act, 3 of
2000 (hereinafter “PAJA”) to review and set aside certain
decisions
made by the Third and Sixth Respondents.
[2]
Ancillary to the relief sought under PAJA, the Applicant seeks the
reinstatement
of certain financial benefits, and an order for the
First Respondents and his staff to vacate certain traditional
administrative
offices together with costs of the application.
[3]
The matter was initially opposed by all six Respondents, but when the
matter
was ultimately heard, the Court was only faced with the
Answering Affidavit of the First and Second Respondents, grouped
together,
and the Third and Fourth Respondents grouped together.
The Respondents oppose the application and simply seek it to be
dismissed
with costs.
[4]
The matter, at its core, relates to the leadership and the
recognition of leadership
of the Bakgatla Ba Seabe Traditional
community.
[5]
The ultimate dispute in respect of the matter relates to which of the
Applicant,
Stephen Makoe Chaane, or the First Respondent, Edward
Phopolo Chaane, ought to be recognised as the Kgosi of the Bakgatla
Ba Seabe
Traditional Community.
[6]
The relief this Court is requested to grant is, however, vested in
Public Law
and not Customary Law, and although the facts of the
matter are derived from Customary Law, the relief sought is to be
granted
in Public and Administrative Law.
[7]
In the current matter, the Court accordingly cautioned itself
throughout not
to attempt to usurp the functions of administrative
agencies, all of the Third, Fourth, Fifth and Sixth Respondents have
important
duties to fulfil and no doubt they all have the required
knowledge and expertise to fulfil such duties with the necessary
diligence
required. The role of this Court is never to attempt
to step into the shoes of any of the Third, Fourth, Fifth and Sixth
Respondents and to make expert decisions on their behalf, the same
would not be appropriate, and it can never be expected of any
Court
to have this level of expertise. If either Applicants or Respondents
wish for the Courts to fulfil this role, they are mistaken.
[8]
The first and primary task of the Court is to ensure that the
decisions taken
by administrative agencies fall within the balance of
reasonableness as required by the Constitution. Only after and
if the
Court finds that it does not, will the Court need to evaluate
whether it is best placed to make an ultimate decision on the matter
at hand or whether it would be just for the decision to be referred
back to the administrative bodies in order to reconsider the
matter.
[9]
In the matter of
BATO STAR FISHING (PTY) LTD v MINISTER OF
ENVIRONMENTAL AFFAIRS AND OTHERS [1]
the Constitutional Court
emphasised that a Court should be careful not to attribute to itself
superior wisdom in relation to matters
entrusted to other branches of
Government and that a Court should take care not to assert functions
of administrative agencies.
[10]
Accordingly, the task of this Court faced with a review application
ought to be significantly easier
if the Court remains within the
confines of a review application.
[11]
The role of this Court in these current proceedings is to determine
whether the actions or decisions
taken by the Third, Fourth, Fifth
and Sixth Respondents constitute administrative action and flowing
therefrom whether such administrative
actions stand to be set aside
or not. Flowing therefrom and if the Court finds that a setting
aside is necessary, the Court
is then granted a wide discretion to
grant an order that is just and equitable in terms of Section 8 of
PAJA.
GENEALOGICAL
HISTORY:
[12]
The Applicant, as well as the First and Second Respondents, offer a
genealogical history of the Royal
Family of Chaane of the Bakgatla Ba
Seabe Community. The Court has evaluated the genealogical
history preferred by the respective
parties purely to receive
background information for the matter at hand. The genealogical
history cannot move the Court to
make any specific order in respect
of this matter, specifically in motion proceedings as the contrasting
views of the respective
parties in as far as they may differ on the
royal bloodlines and claims to the respective position of authority
amount to nothing
less than a dispute of fact. Similarly, upon
evaluation of the respective factual proposition by the respective
parties,
I find no reason not to believe that each respective version
as offered by the respective parties is advanced in a
bona fide
manner on a factual proposition such party believes to be the truth.
[13]
In dealing with disputes of fact in motion
proceedings, Conradie J in
CULLEN
HAUPT
1988 (4) SA 39
(C) at 40 F-H
said:
“
I
have consulted some of the better-known decisions concerning the
referral of applications to evidence or to trial. The leading
decision in this regard is of course
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
T at 1162
, where Murray AJP said
that if a dispute cannot properly be determined it may either be
referred to evidence or to trial, or it
may be dismissed with costs,
particularly when the Applicants should have realised when launching
his application that a serious
dispute of fact was bound to develop.
The next of better-known cases on this topic is that of
Conradie
v Kleingeld
1950 (2) SA 594
(O) at 597
,
where Horwithz J said that a petition may be refused where the
Applicant at the commencement of the application should have realised
that a serious dispute of fact would develop.”
[14]
Motion proceedings were really designed for
the resolution of legal disputes based on common cause facts
[2]
.
[15]
The general rule when dealing with disputes
of fact in motion proceedings is as set out in
PLASCON
EVANS PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
[1984]
ZASCA 51
;
1984 (3) SA 623
(A), where the court referred to
Stellenbosch Farmers’ Winery (Pty) Ltd
1957 (4) SA 234
(C) at
235 E-G, held as follows:
“…
..
Where there is a dispute as to the facts, a final interdict should
only be granted in notice of motion proceedings if the facts
as
stated by the respondent, together with the admitted facts in the
applicant’s affidavits, justify such an order …..
In
certain instances the denial by the Respondent of a fact alleged by
the Applicant may not be such as to raise a real, genuine
or bona
fide dispute of fact (Room Hire Co (Pty) Ltd v Jeppe Street Mansions
(Pty) Ltd
1949 (3 SA 1155
(T) at pp 1163-5. If in such a case
the respondent has not availed himself of his right to apply for the
deponents concerned
to be called for cross-examination under rule
6(5)(g) of the uniform rules of court and the court is satisfied as
to the inherent
credibility of the applications factual averments, it
may proceed on the basis of the correctness thereof an include this
fact
amongst those upon which it determines whether the applicant is
entitled to the final relief which it seeks …….
Moreover,
there may be exceptions to this general rule, as for
example, where the allegations or denials of the respondent are so
far-fetched
or clearly untenable that the court is justified in
rejecting them merely on the papers.”
Our courts are
required to robustly approach deputes of fact in
Soffiantini V
Mould
1956 (4) SA 160
(E)
, the court outlined this approach and
stated as follows:
“
In
the case of Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
T at 1165 Murray, then AJP said: “A bare
denial of the applicant’s material averments cannot be regarded
as sufficient
to defeat the applicant’s right to secure relief
by motion proceedings in appropriate cases. Enough must be
stated
by respondents to enable the Court to conduct a preliminary
examination ….and to ascertain whether denials are not
fictitious,
intended merely to delay the hearing. Soffiantini v
Mould, at 154 E-H.”
[16]
In evaluating whether a dispute in respect of the aforesaid issue
indeed exists, the Court is mindful
further of that which the Court
needs to pronounce upon, within which the Court is confined, and
aspects which the Court ought
not to deal with.
[17]
This Court is not tasked with ordering an outcome in respect of the
Applicant, the First Respondent
and the Second Respondent to finally
decide who ought to be the Kgosi of the Bakgatla Ba Seabe Community.
[18]
This Court simply does not have all the relevant facts to assume the
powers of the relevant administrators
that ought to deal with this
question ultimately. As such, the Third to Sixth Respondents
are, as they have always been,
in a better position than this Court
to come to an ultimate conclusion on the matter at hand.
[19]
In this regard, the starting point of the matter would be, although
out of sequence, that the Court
immediately find that it will not
substitute or vary any administrative action or decision of any of
the decision-makers or administrators.
Dealing specifically with
issues of Customary Law, the specific administrators, as in the
current matter, the Third to Sixth Respondents,
are best suited to
deal with matters such as this.
[20]
The Constitutional Court has comprehensively dealt with the question
of whether a substation order
ought to be made in the matter of
TRENCON CONSTRUCTION (PTY) LTD v INDUSTRIAL DEVELOPMENT
CORPORATION OF SOUTH AFRICA LIMITED AND ANOTHER [3],
where the
Court held as follows:
““
(1)
Exceptional circumstances test
[34]
Pursuant to administrative review under section 6 of PAJA and once
administrative action is set
aside, section 8(1) affords courts a
wide discretion to grant “any order that is just and
equitable”.
[4]
In
exceptional circumstances section 8(1)(c)(ii)(aa) affords a court the
discretion to make a substitution order.
[35]
Section 8(1)(c)(ii)(aa) must be read in the context of section 8(1).
Simply put, an exceptional
circumstances enquiry must take place in
the context of what is just and equitable in the circumstances.
In effect, even
where there are exceptional circumstances, a court
must be satisfied that it would be just and equitable to grant an
order of substitution.
[36]
Long before the advent of PAJA, courts were called upon to determine
circumstances in which granting
an order of substitution would be
appropriate. Those courts almost invariably considered the
notion of fairness as enunciated
in Livestock and the
guidelines laid down in Johannesburg City Council.
[37]
In Livestock, the Court
percipiently held that –
‘
the
Court has a discretion, to be exercised judicially upon
consideration of the facts of each case, and . . . although
the
matter will be sent back if there is no reason for not doing so, in
essence it is a question of fairness to both sides.’
[5]
[38]
In Johannesburg City Council, the Court acknowledged that the usual
course in administrative
review proceedings is to remit the matter to
the administrator for proper consideration. However, it
recognised that courts
will depart from the usual course in two
circumstances:
“
(i)
Where the end result is in any event a foregone conclusion, and it
would merely be
a waste of time to order the tribunal or functionary
to reconsider the matter. This applies more particularly where
much
time has already unjustifiably been lost by an applicant to whom
time is in the circumstances valuable, and the further delay which
would be caused by reference back is significant in the context.
(ii)
Where the tribunal or functionary has exhibited bias or incompetence
to such a degree
that it would be unfair to require the applicant to
submit to the same jurisdiction again.”
[6]
[39]
On a plain interpretation of Johannesburg City Council, the factors
under the exceptional circumstances
enquiry – like foregone
conclusion, bias or incompetence – are independent. That
is, if any factor is established
on its own, it would be sufficient
to justify an order of substitution. Indeed, this
interpretation is also supported by
subsequent case law.
[7]
[40]
The Supreme Court of Appeal in Gauteng Gambling Board seems to have
added another consideration,
whether the court was in as good a
position as the administrator to make the decision
.[8]
For
this, it noted that the administrator is “best equipped by the
variety of its composition, by experience, and its access
to sources
of relevant information and expertise to make the right
decision”.
[9]
The Court also considered the
broader notion of fairness in accordance with Livestock.
[10]
This notion seemed to colour the Court’s analysis of
whether, after the Court was satisfied that it was in as good a
position
as the administrator and a foregone conclusion was
established, an order of substitution was the appropriate
remedy.
[11]
In applying the notion, the Court’s
findings were also informed by how a party is prejudiced by delay and
potential bias or
the incompetence of an administrator if the matter
were remitted.
[12]
[41]
It is instructive that cases applying section 8(1)(c)(ii)(aa) of PAJA
have embraced a similar
approach to those that ordered substitution
under the common law. However, because the section does not
provide guidelines
on what exceptional circumstances entail, it is of
great import that the test for exceptional circumstances be
revisited.
[42]
The administrative review context of section 8(1) of PAJA and the
wording under subsection (1)(c)(ii)(aa)
make it perspicuous that
substitution remains an extraordinary remedy.
[13]
Remittal
is still almost always the prudent and proper course.
[43]
In our constitutional framework, a court considering what constitutes
exceptional circumstances
must be guided by an approach that is
consonant with the Constitution. This approach should entail
affording appropriate
deference to the administrator. Indeed,
the idea that courts ought to recognise their own limitations still
rings true.
It is informed not only by the deference courts
have to afford an administrator but also by the appreciation that
courts are ordinarily
not vested with the skills and expertise
required of an administrator.
[44]
It is unsurprising that this Court in Bato Star accepted Professor
Hoexter’s account of
judicial deference as –
‘
a
judicial willingness to appreciate the legitimate and
constitutionally-ordained province of administrative agencies; to
admit
the expertise of those agencies in policy-laden or polycentric
issues; to accord their interpretations of fact and law due respect;
and to be sensitive in general to the interests legitimately pursued
by administrative bodies and the practical and financial constraints
under which they operate. This type of deference is perfectly
consistent with a concern for individual rights and a refusal
to
tolerate corruption and maladministration. It ought to be
shaped not by an unwillingness to scrutinise administrative
action,
but by a careful weighing up of the need for – and the
consequences of – judicial intervention. Above
all, it
ought to be shaped by a conscious determination not to usurp the
functions of administrative agencies; not to cross over
from review
to appeal.’
[14]
[45]
Judicial deference, within the doctrine of separation of powers, must
also be understood in the
light of the powers vested in the courts by
the Constitution. In Allpay II, Froneman J stated that -
‘
[t]here
can be no doubt that the separation of powers attributes
responsibility to the courts for ensuring that unconstitutional
conduct is declared invalid and that constitutionally mandated
remedies are afforded for violations of the Constitution.
This
means that the Court must provide effective relief for infringements
of constitutional rights.
. . .
Hence, the answer to
the separation-of-powers argument lies in the express provisions of
section 172(1) of the Constitution.
The corrective principle
embodied there allows correction to the extent of the constitutional
inconsistency’.
[15]
(Footnote omitted.)
[46]
A case implicating an order of substitution accordingly requires
courts to be mindful of the
need for judicial deference and their
obligations under the Constitution. As already stated, earlier
case law seemed to suggest
that each factor in the exceptional
circumstances enquiry may be sufficient on its own to justify
substitution.
[16]
However, it is unclear from more recent
case law whether these considerations are cumulative or discrete.
[17]
[47]
To my mind, given the doctrine of separation of powers, in conducting
this enquiry there are
certain factors that should inevitably hold
greater weight.
[18]
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.
[48]
A court will not be in as good a position as the administrator where
the application of the
administrator’s expertise is still
required and a court does not have all the pertinent information
before it. This
would depend on the facts of each case.
Generally, a court ought to evaluate the stage at which the
administrator’s
process was situated when the impugned
administrative action was taken. For example, the further along
in the process, the
greater the likelihood of the administrator
having already exercised its specialised knowledge. In these
circumstances, a
court may very well be in the same position as the
administrator to make a decision. In other instances, some
matters may
concern decisions that are judicial in nature; in those
instances – if the court has all the relevant information
before
it – it may very well be in as good a position as the
administrator to make the decision
.[19]
[49]
Once a court has established that it is in as good a position as the
administrator, it is competent
to enquire into whether the decision
of the administrator is a foregone conclusion. A foregone
conclusion exists where there
is only one proper outcome of the
exercise of an administrator’s discretion and “it would
merely be a waste of time
to order the [administrator] to reconsider
the matter”.
[20]
Indubitably, where the
administrator has not adequately applied its unique expertise and
experience to the matter, it may be difficult
for a court to find
that an administrator would have reached a particular decision and
that the decision is a foregone conclusion.
However, in
instances where the decision of an administrator is not polycentric
and is guided by particular rules or by legislation,
it may still be
possible for a court to conclude that the decision is a foregone
conclusion.
[50]
The distinction between the considerations in as good a position and
foregone conclusion seems
opaque as they are interrelated and
interdependent. However, there can never be a foregone
conclusion unless a court is in
as good a position as the
administrator. The distinction can be understood as follows:
even where the administrator has applied
its skills and expertise and
a court has all the relevant information before it, the nature of the
decision may dictate that a
court defer to the administrator.
This is typical in instances of policy-laden and polycentric
decisions.
[21]
[51]
A court must consider other relevant factors, including delay.
Delay can cut both ways.
In some instances, it may indicate the
inappropriateness of a substitution order, especially where there is
a drastic change of
circumstances and a party is no longer in a
position to meet the obligations arising from an order of
substitution or where the
needs of the administrator have
fundamentally changed. In other instances, delay may weigh more
towards granting an order
of substitution. This may arise where
a party is prepared to perform in terms of that order and has already
suffered prejudice
by reason of delay. In that instance, the
delay occasioned by remittal may very well result in further
prejudice to that
party. Importantly, it may also negatively
impact the public purse.
[52]
What must be stressed is that delay occasioned by the litigation
process should not easily cloud
a court’s decision in reaching
a just and equitable remedy. Sight must not be lost that
litigation is a time-consuming
process. More so, an appeal
should ordinarily be decided on the facts that existed when the
original decision was made.
[22]
Delay must be understood
in the context of the facts that would have been laid in the court of
first instance as that is the court
that would have been tasked with
deciding whether a substitution order constitutes a just and
equitable remedy in the circumstances.
[53]
There are important reasons for this approach. Where a matter
is appealed, delay is inevitable.
Thus, assessing delay with
particular reference to the time between the original decision and
when the appeal is heard could encourage
parties to appeal cases.
This, they would do, with the hope that the time that has lapsed in
the litigation process would
be a basis for not granting a
substitution order. Where a litigant wishes to raise delay on
the basis of new evidence, that
evidence must be adduced and admitted
in accordance with legal principles applicable to the introduction of
new evidence on appeal.
[23]
Ultimately, the appropriateness of
a substitution order must depend on the consideration of fairness to
the implicated parties.
[54]
If the administrator is found to have been biased or grossly
incompetent, it may be unfair to ask
a party to resubmit itself to
the administrator’s jurisdiction. In those instances,
bias or incompetence would weigh
heavily in favour of a substitution
order. However, having regard to the notion of fairness, a
court may still substitute
even where there is no instance of bias or
incompetence.
[55]
In my view, this approach to the exceptional circumstances test
accords with the flexibility
embedded in the notion of what is just
and equitable. It is, therefore, consonant with the
Constitution while at the same
time giving proper deference and
consideration to an administrator.”
(FOOTNOTES INCLUDED AS IN
QUOTED JUDGMENT)
[21]
This Court has, as recently as in the matter of
MPILO AND ZEN
HOLDINGS (PTY) LTD, (3985/2023) [2025] ZAMPMBHC 32 (5 May 2025),
emphasised the need to empower the administrators dealing with
matters of a technical nature, where the Court found:
“
Having regard
to the facts of the matter, the need to empower the relevant
administrators and the fact that the Court regards them
to be experts
in their field of law and best equipped to evaluate the history,
underlying principles, and prevailing principles
to the facts of the
matter together with the fact that there exists a necessity for the
current administrators in respect of the
current matter to seriously
grapple with the issues at hand before the legal conundrum is placed
at the feet of the Court, this
Court shall not pronouns finally on
issues which it believes the administrators can and should resolve.”
[22]
The only issue the Court shall accordingly evaluate is whether an
administrative action or administrative
actions exist, whether the
referral of such administrative action or administrative actions was
made within the prescribed timeframes
of PAJA and whether the matter
needs to be referred back to any or all of the administrators to
re-evaluate the matter to come
to a final conclusion.
[23]
The aforesaid is stated as a precursor for the parties to understand
which aspects the Court concerned
itself with in respect of the
matter and which functions the Court believes the administrators are
more suited to deal with.
BACKGROUND:
[24]
Concerning the current Applicant and Respondents, the following are
important background facts:
[25.1] On 3
October 2001, the Applicant was recognised by the then Premier of the
Mpumalanga Province as the Kgosi for
the Bakgatla Ba Seabe
Traditional Community.
[25.2] The
recognition of the Applicant emanated from the 1982 Bophuthatswana
commission, identified as the commission
of enquiry into the
Chieftainship of the Bakgatla Ba Seabe Tribe.
[25.3] In
2014, the new provincial committee on Traditional Leadership Disputes
Claims was established under the auspices
of the “Tolo
Commission”.
[25.4]
Flowing from the establishment of the Commission on 28 January 2015,
the first administrative action which the
Applicant wishes to review
and set aside occurred. This administrative action was taken by
the Sixth Respondent.
[25.5] On 6
July 2015, the second administrative action was taken, again by the
Sixth Respondent, which refers to the
reports drawn and decisions
taken by the Sixth Respondent.
[25.6]
Flowing from the aforesaid the administrative actions of the Sixth
Respondent, amongst other facts were taken
into regard by the Third
Respondent which culminated in the Third Respondent on 9 October 2020
taking a decision to recognise the
First Respondent as the Kgosi of
the Bakgatla Ba Seabe Community which is the third administrative
action the Applicants pray to
review and set aside.
[25]
Neither the papers filed by any of the parties nor the arguments
advanced by the respective parties
during the hearing of the matter
contested that the three decisions which the Applicant wishes to
review and set aside constitute
anything else than administrative
action which the Applicant wants to review and set aside under the
auspices of PAJA.
[26]
As such, each of these decisions needs to be evaluated individually
to establish if the Applicant has
made out a case for the relief he
ultimately seeks.
[27]
Administrative action is defined in the Act as follows:
“
administrative
action”
means any decision taken, or any
failure to take a decision, by—
(a)
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
(b)
a natural or juristic person, other than an organ of 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 sections 79(1) and
(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 Provincial Executive,
including the powers or functions referred
to in sections 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;
(cc)
the executive powers or functions of a municipal council;
(dd)
the legislative functions of Parliament, a provincial legislature or
a municipal council;
(ee)
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 Units and
Special Tribunals Act, 1996 (Act 74 of
1996), and the judicial
functions of a traditional leader under customary law or any other
law;
(ff)
a decision to institute or continue a prosecution;
(gg)
a decision relating to any aspect regarding the nomination, selection
or appointment of a judicial officer
or any other person, by the
Judicial Service Commission in terms of any law;
[“administrative
action” (gg) substituted by s 26 of Act 55 of 2003.]
(hh)
any decision taken, or failure to take a decision, in terms of any
provision of the
Promotion of Access to Information Act, 2000
; or
(ii)
any decision taken, or failure to take a decision, in terms of
section 4(1)
;”
[28]
The standing of the Applicant has not seriously been opposed, and
with good reason, as the founding
papers of the Applicant set out
clearly that the Applicant has the required
locus standi
to
make the current application.
[29]
Section 7
of PAJA sets out the procedure for Judicial review.
“
Procedure for
judicial review
(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)
subject to subsection (2) (c) , on which any
proceedings instituted in terms of internal remedies as contemplated
in subsection
(2) (a) have been concluded; or
(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.
(3)
The Rules Board for Courts of Law established by section 2
of the Rules Board for Courts of Law Act, 1985 ( Act 107 of 1985 ),
must,
before 28 February 2009, subject to the approval of the
Minister, make rules of procedure for judicial review.
(4)
Until the rules of procedure referred to in subsection (3)
come into operation, all proceedings for judicial review under this
Act
must be instituted in a High Court or another court having
jurisdiction.
(5)
Any rule made under subsection (3) must, before publication
in the Gazette, be approved by Parliament.
”
PRELIMINARY
POINT: CONDONATION:
[30]
The Respondents all take issue with the late filing of the
Applicant’s application.
[31]
It is commonly accepted by the respective parties that the
application of the Applicant was brought
on or around the 11
th
of May 2021.
[32]
The Applicant was informed of and received knowledge of the 9 October
2020 decision on 7 October 2020,
two days before the decision was
published in the Government Gazette 3197 on 2 October 2020.
[33]
Insofar as the Court is guided by the 180-day period as set out in
PAJA, the application is filed approximately
197 days after the
Applicant received knowledge of the decision of 7 October 2020.
Whether or not the delay is to be regarded
as significant or not, the
application is filed at the very least outside the 180-day period as
provided for in PAJA by at least
17 days. The Court needs to evaluate
whether condonation for the late filing of the application in respect
of the latest decision
ought to be granted.
[34]
The Applicant attributes the time delay to financial difficulties in
the bringing of the application.
[35]
Section 9 of PAJA states that:
“
Variation of
time
(1)
The period of-
(a)
90 days referred to in section 5 may be reduced; or
(b)
90 days or 180 days referred to in sections 5 and 7 may
be extended for a fixed period,
by agreement between
the parties or, failing such agreement, by a court or tribunal on
application by the person or administrator
concerned.
(2)
The court or tribunal may grant an application in terms of
subsection (1) where the interests of justice so require.”
[36]
In evaluating the condonation application brought in respect of the
decision the Applicant seeks to
review and set aside of 9 October
2020, it ought to be regarded that the institution of the application
is not solely based on
the 180-day principle. The application
needs to be instituted
without unreasonable delay
.
[37]
Having not complied at least with the 180-day requirement, the
Applicant needs to persuade the Court
that the interest of Justice
requires that condonation ought to be granted.
[38]
The cut-off period, as stated in PAJA, has significant importance as
it has been in existence in respect
of administrative actions of
public bodies even before PAJA was enacted.
[39]
In
GQWETHA V
TRANSKEI DEVELOPMENT CORPORATION & OTHERS
2006 (2) SA 603
(SCA)
,
the
court found as follows in its majority decision at [22] – [23]:
“
It
is important for the efficient functioning of public bodies that a
challenge to the validity of their decisions by proceedings
for
judicial review should be initiated without undue delay. The
rationale of the longstanding rule – reiterated most recently
by Brand JA in
Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005
(2) SA 302
(SCA)
at 321
–
is
twofold: First, the failure to bring a review within a reasonable
time may cause prejudice to the respondent. Secondly, and in
my view
more importantly, there is a public interest element in the finality
of administrative decisions and the exercise of administrative
functions …. Underlying the latter aspect of the rationale is
the inherent potential for prejudice, both to the effective
functioning of the public body and to those who rely on its
decisions, if the validity of its decision remains uncertain …
”
.
[40]
In the matter of
OPPOSITION TO URBAN TOLLING ALLIANCE V SOUTH
AFRICAN NATIONAL ROADS AGENCY LIMITED (OUTA)
[2013] 4 ALL SA
639
SCA
, the Court stated at paragraph 26 that:
“
At
common law, application of the undue delay rule required a two-stage
enquiry. First, whether there was an undue delay and, second,
if so,
whether the delay should in all the circumstances be condoned …
Up to a point, I think, section 7(1) of PAJA requires
the same
two-stage approach. The difference lies, as I see it, in the
Legislature’s determination of a delay exceeding 180
days as
per se unreasonable. Before the effluxion of 180 days, the first
enquiry in applying section 7(1) is still whether the
delay (if any)
was unreasonable. But after the 180-day period, the issue of
unreasonableness is predetermined by the Legislature:
it is
unreasonable per se
”.
[41]
If the Court does not grant the extension after the 180-day period
has lapsed, the Court has no authority
to entertain the review
application at all, and whether or not the decision was unlawful no
longer matters, as per the
OPPOSITION TO URBAN TOLLING ALLIANCE
matter
supra
at paragraph 26.
[42]
Exact knowledge of the administrative action is irrelevant for
purposes of calculating the starting
date of the 180-day period.
The starting date shall be deemed to start when knowledge of the
decision and reasons for it
is acquired or “ought reasonably to
have become known to the Applicant”.
[43]
This principle has been confirmed in the matter of
CITY OF CAPE
TOWN v AURECON SA (PTY) LTD
2017 (4) SA 223
(CC).
[44]
The sole reason for the delay, as stated by the Applicant, is the
unavailability of funds to pursue
the review sooner. I was
referred in their Heads of Argument by the First and Second
Respondents to the matter of
KGOSI
NGOAKE ISAAC LEBOGO AND
ANOTHER v HEADMAN MATOME COBE AND OTHERS [2024] (ZASCA) 160
,
which not only resembles a similar set of facts in respect of the
challenge of a Kgosi by way of a PAJA application but also deals
with
the seeking of condonation for a delay premised upon the
unavailability of funds.
[45]
The matter of
KGOSI LEBOGO
supra
further sets out all
the applicable legal principles in respect of the matter at hand, and
I align myself with them accordingly.
[46]
Insofar as it relates to a lack of funds, the Court held in the
matter of
DU PLESSIS v WITS HEALTH CONSORTIUM (PTY) LTD
[2013] JOL
30060
(LC)
at paragraph 16 that:
“
It is clear
from the above and other judgments that a claim of lack of funds on
its own cannot constitute a reasonable explanation
for the delay, in
other words, in pleading lack of funds as the cause of the delay, the
Applicant needs to provide more than a
mere claim that the reason for
the delay is lack of funds. In this respect, the Applicant has
to take the Court into his
or her confidence in seeking its
indulgence by explaining when, not only that he or she finally raised
funds to conduct the case,
but also how and when did he or she raised
those funds. The “when” aspects of the explanation
are important,
as it provided the Court with information as to
whether there was any further delay after raising the funds and
whether an explanation
has been provided for such delay.”
[47]
In applying the principles as set out in the
DU PLESSIS v WITS
HEALTH CONSORTIUM
supra,
the Applicant did not take the
Court into its confidence to make any other submissions other than
that he was financially strained
due to the decisions taken by the
Respondents, and that same caused the delay. The Applicant failed to
explain when and how he
then, later came into funds, failed to
explain when he provided instructions to his legal representatives
and failed to give a
proper account of the full extent of the delay.
Simply put, the Court is left to speculate as to whether the delay
ought
to be regarded as reasonable, as, barring the sweeping
statement of financial hardship, the Court is simply not in a
position to
evaluate whether the delay is reasonable or not.
[48]
The degree of lateness is, however, not the only consideration.
The test is whether it is in
the interest of justice for the court to
nonetheless grant condonation. If the Applicant, for instance,
has significant prospects
of success, the Court would be inclined to,
nonetheless, grant condonation for the late filing of the
application. In order
to receive an answer to the aforesaid
conundrum, the Court needs to evaluate whether condonation is to be
granted for the decisions
of 28 January 2015 and 6 July 2015 to be
reviewed and set aside. If the administrative decisions of the
Sixth Respondent
are not reviewed and set aside, the Applicant’s
prospects of success insofar as it relates to the decision of 9
October 2020
cannot be regarded as being significantly good.
[49]
I say so, premised upon Section 25 of the Mpumalanga Traditional
Leadership and Governance Act, 3 of
2005, which states the following:
“
Implementation
of decision of the commission
(1)
The
Premiers must, within 30 days of the receipt of a recission of the
commission contemplated in Section 26 of the Framework Act,
inform
the Provincial House of the Traditional Leaders and the 11 local
houses of Traditional Leaders of the decision and if such
a decision
relates to a dispute which affects a Traditional Community or
Counsel, inform such Traditional Community or Counsel
as the case may
be.
(2)
The
Premier must, within a reasonable period implement the decision of
the commission in so far as the implementation of the decision
does
not relate to the recognition or removal of an Ingwenyama or
Indlovukati in terms of Sections 9 and 10 of the Framework Act.”
[50]
Whilst alternative issues might be brought into the fray by the
Applicant in as far as it relates to
the decision of 9 October 2020,
if the decisions of 28 January 2015 and 6 July 2015 are not reviewed
and set aside the Third Respondent
would be bound to consider those
decisions, and the prospects of the Third Respondent coming to a
different view in respect of
the decision of
9 October 2020
cannot be regarded in any other way than as slight.
[51]
I deal with the decisions of 28 January 2015 and 6 July 2015 jointly.
It can be accepted that the Applicant
was informed of the decisions
on 18 November 2018, and such was received by the Applicant on at
least 19 January 2019.
[52]
A loose calculation of the days after the decisions came to the
knowledge of the Applicant to the date
on which the application was
made amounts to approximately 850 days and approximately 670 days
after the 180-day provision as set
out in PAJA.
[53]
The Respondents contend that the application is filed more than 2
years out of time if regard is had
to the bar imposed on the
Applicant in PAJA and the
180-day provisions therein.
[54]
The application for the Applicant is silent on the delay in making
the application to review and set
aside the decisions of 28 January
2015 and 6 July 2015.
[55]
The Applicant did not indicate in his founding papers that the
decisions of
28 January 2015 and 6 July 2015 ought to be dealt
with in any other way than the decision of 9 October 2020. The
request for
condonation simply in no way deals with the decisions of
28 January 2015 and 6 July 2015.
[56]
The Applicant was also still in office and receiving his salary up
until October 2020, so the reasons
advanced for the late filing of
the application in respect of the decision of 9 October 2020 cannot
similarly be applied by the
Applicant in respect of the decisions of
28 January 2015 and 6 July 2015.
[57]
During the argument, Advocate Ngwenya, appearing on behalf of the
Applicant, stated that the Applicant
needn’t seek condonation
in respect of the decisions of 28 January 2015 and 6 July 2015.
He premised his argument on
section 21 of the Traditional Leadership
and Governance Framework Act, 41 of 2003, as amended by the
Traditional Leadership and
Governance Framework Amendment Act, 23 of
2009.
“
Dispute and
claim resolution
(1)
(a) Whenever a dispute or claim concerning customary law or customs
arises between or within traditional
communities or other customary
institutions on a matter arising from the implementation of this Act,
members of such a community
and traditional leaders within the
traditional community or customary institution concerned must seek to
resolve the dispute or
claim internally and in accordance with
customs before such dispute or claim may be referred to the
Commission.
(b) If a dispute or
claim cannot be resolved in terms of paragraph (a), subsection (2)
applies.
(2)
(a) A dispute or claim referred to in subsection (1) that cannot be
resolved as provided for in
that subsection must be referred to the
relevant provincial house of traditional leaders, which house must
seek to resolve the
dispute or claim in accordance with its internal
rules and procedures.
(b) If a provincial
house of traditional leaders is unable to resolve a dispute or claim
as provided for in paragraph (a), the dispute
or claim must be
referred to the Premier of the province concerned, who must resolve
the dispute or claim after having consulted-
(i)
the parties to the dispute or claim;
(ii)
the provincial house of traditional leaders concerned.
(c)
A dispute or claim that cannot be resolved as provided for in
paragraphs
(a) and (b) must be referred to the Commission.
(3)
Where a dispute or claim contemplated in subsection (1) has not
been resolved as provided for
in this section, the dispute or claim
must be referred to the Commission.”
[58]
The argument by Advocate Ngwenya is that the decision of 28 January
2015 and 6 July 2015 constitute
a dispute which ought to have been
regarded as forming part of the dispute resolution mechanism embedded
in Section 21, and that
the dispute resolution could only be regarded
as finalised when the premier made the decision on 9 October 2020.
[59]
The argument by the Applicant in respect of the decision of 28
January 2015 and 6 July 2015 did not
present itself in the
Applicant’s founding papers. After being confronted with
the answering papers by the respective
Respondents which specifically
challenged the late filing of the application in respect of the
decisions of 28 January 2015 and
6 July 2015 the Applicant had the
opportunity to file a Replying Affidavit to those averments, yet,
despite having such an opportunity
and knowing the opposition
advanced by the Respondents, the Applicant again elected not to
advance the proposed case as was advanced
during argument on his
behalf.
[60]
The legal principles pertaining to the content of affidavits filed on
behalf of a party are trite,
and a party that approach the Court for
relief or opposes relief being granted against him needs to properly
and thoroughly deal
with all the issues at hand to advance his case
as best he can for the Court’s consideration but also to allow
his opponent
the benefit of knowing what the case is that he needs to
meet when the matter is ultimately heard.
[61]
The case advanced by the applicant, as well as the position thereof
by the respective Respondents,
all agree that all three of the
complained-of decisions constitute administrative action and all of
the three decisions ought to
be evaluated under the same principles.
[62]
Even in the event of the Court being persuaded to evaluate the
argument of the Applicant premised on
the statements of the Applicant
during argument, which I am reluctant to do, I am not persuaded that
Section 21 in any event finds
application to the matter at hand. The
Applicant has simply not made out a case in respect of the
declaration of a dispute, internal
dispute resolution mechanisms
being followed and exhausted and the proposition that the decisions
of 28 January 2015 and 6 July
2015 only becoming subject to the time
barring provision of PAJA upon the decision of the Third Respondent
on 9 October 2020.
[63]
Even if a different Court was to accept the proposition as advanced
by the Applicant from the bar in
respect of the dispute resolution
mechanism, the explanation for the delay at least since 7 October
2020 would still be regarded
as inadequate premised on the same
principles that I have found in respect of the decision of 9 October
2020.
[64]
Having found the time delay in respect of the decision of 28 January
2015 and
6 July 2015, being unreasonable and exorbitant, the only
other issue remains to evaluate whether, despite all of the aforesaid
deficiencies
in the Applicant’s case, the interest of justice
dictates that condonation nonetheless be granted.
[65]
The Applicant consciously elected not to partake and lead evidence in
respect of the decisions of 28
January 2015 and 6 July 2015.
[66]
Having regard to same and the principles of disputes of fact, the
evaluation of the underlying factual
premise the Applicant wishes to
advance
ex post facto
the reports of the respective
commissions which he electively did not partake in, the Court is not
satisfied that such allegations
in respect of the underlying factual
averments, not being tested by the respective commissions, hold
substantial prospects of success
for the application to nonetheless
be heard.
[67]
The only issue the Court can find to evaluate whether, despite the
undue time delay, the Court ought
to nonetheless hear the application
is whether the commission that made the findings of 28 January 2015
and 6 July 2015 had the
necessary jurisdiction to deal with the
matter when and in the manner in which it did.
[68]
In evaluation of the matter, I could find no uncontested proof that
the issues pertaining to the leadership
roles within the Bakgatla Ba
Seahbe Tribe were ever dealt with between the respective factions
within the tribe to the degree that
the dispute was resolved.
[69]
The Applicant was appointed under the Bophuthatswana Traditional
Authorities Act, 23 of 1978.
The total of the Bophuthatswana
Traditional Authorities Act, 23 of 1978 was repealed with the
enactment of the Mpumalanga Traditional
Leadership and Governance
Act, 3 of 2005.
[70]
The Mpumalanga Traditional Leadership and Governance Act, 3 of 2005,
reflects the legislation contemplated
in
Section 22
of the
Traditional Leadership and Governance Framework Act, 41 of 2003
,
culminating in the establishment of the Sixth Respondent.
[71]
In respect of
Section 25
of the
Traditional Leadership and Governance
Framework Act, 41 of 2003
, the following is appropriate to be
restated:
“
25
Functions of Commission
(1)
The Commission operates nationally in plenary and
provincially in committees and has authority to investigate and make
recommendations
on any traditional leadership dispute and claim
contemplated in subsection (2).
(2)
(a) The Commission has authority to investigate and make
recommendations on-
(i)
a case where there is doubt as to whether a kingship or,
principal traditional leadership, senior traditional leadership or
headmanship
was established in accordance with customary law and
customs;
(ii)
a case where there is doubt as to whether a principal
traditional leadership, senior traditional leadership or headmanship
was established
in accordance with customary law and customs;
(iii)
a traditional leadership position where the title or right
of the incumbent is contested;
(iv)
claims by communities to be recognised as kingships,
queenships, principal traditional communities, traditional
communities, or
headmanships;
(v)
the legitimacy of the establishment or disestablishment of
'tribes' or headmanships;
(vi)
disputes resulting from the determination of traditional
authority boundaries as a result of merging or division of 'tribes';
(viii)
all traditional leadership claims and disputes
dating from 1 September 1927 to the coming into operation of
provincial legislation
dealing with traditional leadership and
governance matters; and
(ix)
gender-related disputes relating to traditional leadership
positions arising after 27 April 1994.
(b)
A dispute or claim may be lodged by any person and must
be accompanied by information setting out the nature of the dispute
or claim
and any other relevant information.
(c)
The Commission may decide not to consider a dispute or
claim on the ground that the person who lodged the dispute or claim
has not
provided the Commission with relevant or sufficient
information or the provisions of
section 21
have not been complied
with.
(3)
(a) When considering a dispute or claim, the Commission
must consider and apply customary law and the customs of the relevant
traditional
community as they applied when the events occurred that
gave rise to the dispute or claim.
(b)
The Commission must-
(i)
in respect of a kingship or queenship, be guided by the
criteria set out in section[s] 2A (1) and 9 (1); and
(ii)
in respect of a principal traditional leadership, senior
traditional leadership or headmanship, be guided by the customary law
and
customs and criteria relevant to the establishment of a principal
traditional leadership, senior traditional leadership or headmanship,
as the case may be.
(c)
Where the Commission investigates disputes resulting
from the determination of traditional authority boundaries and the
merging
or division of 'tribes', the Commission must, before making a
recommendation in terms of
section 26
, consult with the Municipal
Demarcation Board established by section 2 of the Local Government:
Municipal Demarcation Act, 1998
(Act 27 of 1998) where the
traditional council boundaries straddle municipal and or provincial
boundaries.
(4)
Subject to subsection (5) the Commission-
(a)
may only investigate and make recommendations on those
disputes and claims that were before the Commission on the date of
coming
into operation of this chapter; and
(b)
must complete the matters contemplated in paragraph (a)
within a period of five years, which period commences on the date of
appointment
of the members of the Commission in terms of section 23,
or any such further period as the Minister may determine.
(5)
Any claim or dispute contemplated in this Chapter submitted
after six months after the date of coming into operation of this
chapter
may not be dealt with by the Commission.
(6)
The Commission-
(a)
may delegate any function contemplated in this section
excluding a matter related to kingships or queenships to a committee
referred
to in section 26A; and
(b)
must coordinate and advise on the work of the
committees referred to in section 26A.
(7)
Sections 2, 3, 4, 5 and 6 of the Commissions Act, 1947 (Act
8 of 1947), apply, with the necessary changes, to the Commission.
(8)
The Commission may adopt rules for the conduct of the
business of the Commission as well as committees referred to in
section 26A.
(9)
Provincial legislation must provide for a mechanism to deal
with disputes and claims related to traditional leadership: Provided
that such a mechanism must not deal with matters to be dealt with by
the Commission.”
[72]
I find no reason why the Sixth Respondent would not have the
authority to investigate and make recommendations
on the issues at
hand under the auspices of Section 25(2)(a).
[73]
The reasoning for the establishment of a commission such as the Sixth
Respondent is properly stated
in the matter of
PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA v SIGCAU AND OTHERS
[2024] ZACC 21
;
2025 (1)
BCLR 26
(CC) (3 October 2024).
“
Section 22(1)
of the unamended Framework Act provided for the
establishment of the Commission. In terms of
section 25(2)
of the Framework Act, the Commission had the authority to
investigate, either on request or of its own
accord, any of the
matters listed in section 25(2)(i) to (vi).
Section 25(3)(a) of the Framework Act provided that
when
considering a dispute or claim, the Commission: “must consider
and apply customary law and the customs of the relevant
traditional
community as they were when the events occurred that gave rise to the
dispute or claim”. Section 25(3)(b)(i)
provided that
the Commission must, in respect of a kingship, be guided by “the
criteria set out in section 9(1)(b) and
such other customary
norms and criteria relevant to the establishment of a kingship”.
Section 9(1)(a)
provided for what had to be considered before someone is recognised
as a king or queen. The Commission had
powers to investigate
and decide disputes of various kinds resulting from historical
aberrations of customary law and customary
law institutions under
colonial and apartheid laws dating back to 1 September 1927
(when the Native Administration Act
took effect), or
earlier if good grounds existed. The mandate of the Commission
was that it had to restore the integrity
of the institution of
traditional leadership and right the wrongs of the past by resolving
traditional leadership disputes dating
from as far back as
1 September 1927.
Importantly, the
Commission, in terms of section 25(3)(a) of the Framework Act,
had to consider and apply customary law
and customs of the relevant
traditional community as they were when events occurred that gave
rise to the dispute or claim.”
[77]
The Commission could, accordingly, either by referral or of their own
accord,
institute an investigation and then make a recommendation.
[78]
As such, the authority of the commission cannot seriously be
challenged by
the Applicant.
[79]
Having regard to all the facts of the matter and the threshold the
Applicant
needed to meet in order to obtain the relief he seeks,
which currently is to obtain the right from this Court for his claim
to
be heard, I am not satisfied that the Applicant has met such a
threshold.
[80]
A proper investigation into the underlying facts of the matter and
the underlying
disputes between the Applicant and the First
Respondent has been undertaken by the Commission. They have
made a report considering
all the relevant facts that they believed
to be appropriate to be taken into regard, and they have made certain
recommendations
which the Third Respondent, having properly
evaluated, has implemented. I find no reason that could
move me to believe
that the actions of the respective administrative
bodies were so inapt, misinformed or grossly negligent that this
Court needs
to intervene and overlook all the deficiencies in the
Applicant’s application for justice to be done.
[81]
Having found that condonation ought not to be granted for the late
filing of
the review application in respect of the respective
administrative decisions, the Court cannot deal with the matter, and
for that
reason, the application ought to be dismissed.
[82]
The Applicant did not, for all the reasons stated herein, satisfy the
requirements
to extend the time within which the proceedings for
judicial review must have been instituted under PAJA.
[83]
The interest of justice in these circumstances militates against the
granting
of condonation, having regard to the facts of the matter,
the extremely long time delay for which a sufficient explanation has
not been provided, the need for finality and certainty in the matter
and the lack of any other deserving overriding facts being
presented
by the applicant in presenting his case.
COSTS:
[84]
I find no reason to deviate from the normal rule that costs ought to
follow suit. Given the complexity
of the matter and the volumes
of documents applicable, I find that Scale B ought to apply.
ORDER:
[85]
In the result and for all the reasons as stated, the following Order
is made:
1.
The application is dismissed.
2.
The Applicant is ordered to pay the First to Fourth Respondents’
costs on a Party and Party Scale,
Scale B.
H
F FOURIE AJ
ACTING
JUDGE OF HIGH COURT, MBOMBELA
Counsel for the
Applicant:
Adv TS Ngwenya
Instructed by:
RK TSHOTLHANG
ATTORNEYS
C/O JF SHABANGU
ATTORNEYS
Counsel
for the First – Second
Respondents
Adv V Qithi
Instructed by:
RANTHO &
ASSOCIATES INC
Counsel for the
Third – Fourth Respondents:
Adv LH Makamu
Instructed by:
OFFICE OF THE
STATE ATTORNEY
Judgment reserved
on:
9 May 2025
Date of delivery:
16 May 2025
[1.]
[2004] ZACC 15
;
2004 (4) SA 490
(CC)
[2.]
National Director of Public Prosecutions v
Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 26
[3.]
2025 (5) SA 245
(CC)
[4.]
See section 8(1) of PAJA .
[5.]
Livestock above at 349G.
[6.]
Johannesburg City Council at 76D-G.
[7.]
Vukani Gaming Free State (Pty) Ltd v Chairperson of the Free
State Gambling and Racing Board and Others
[2010] ZAFSHC 33
at paras
53-4 and Erf One Six Seven Orchards CC v Greater Johannesburg
Metropolitan Council (Johannesburg Administration) and Another
[1998]
ZASCA 91
;
1999 (1) SA 104
(SCA) at para 109F.
[8.]
Gauteng Gambling Board v Silver Star Development Limited and
Others
2005 (4) SA 67
(SCA) (Gauteng Gambling Board) at para 39,
where the Court held that—
“
the
court a quo was not merely in as good a position as the
Board to reach a decision but was faced with the inevitability
of a
particular outcome if the Board were once again to be called upon
fairly to decide the matter.”
[9.]
Id at para 29.
[10.]
Id at para 28. See also Livestock above at 29 at 349G.
[11.]
Gauteng Gambling Board above at paras 39 and 40.
[12.]
Id at para 40.
[13.]
Section 8(1) of PAJA above .
[14.]
Bato Star above at para 46. See Hoexter “The Future
of Judicial Review in South African Administrative Law”
(2000)
117 SALJ 484
at 501-2.
[15.]
Allpay Consolidated Investment Holdings (Pty) Ltd and Others v
Chief Executive Officer, South African Social Security Agency and
Others
[2014] ZACC 12
;
2014 (4) SA 179
(CC);
2014 (6) BCLR 641
(CC)
at paras 42 and 45.
[16.]
See [36] to [39] of the quoted judgment.
[17.]
Radjabu v Chairperson of the Standing Committee for Refugee
Affairs and Others
[2014] ZAWCHC 134
;
[2015] 1 All SA 100
(WCC) at
paras 33-9; Media 24 Holdings (Pty) Ltd v Chairman of the Appeals
Board of the Press Council of South Africa and Another
[2014] ZAGPJHC
194 at para 25; Nucon Roads and Civils (Pty) Ltd v MEC for Department
of Public Works, Roads and Transport: N.W.
Province and Others
[2014]
ZANWHC 19
at paras 32, 41 and 44; and Reizis NO v MEC for the
Department of Sport, Arts, Culture and Recreation and Others [2013]
ZAFSHC
20 at paras 33 4.
[18.]
It should be emphasised that the exceptional circumstances
enquiry only arises in the context of the appropriate remedy to be
granted
as per section 8(1) of PAJA. Thus, it is only after the
unlawfulness of the award has been established pursuant to section
6
of PAJA that the remedy, and therefore the exceptional circumstances
enquiry, arises.
[19.]
Theron en Andere v Ring van Wellington van die NG Sendingkerk in
Suid-Afrika en Andere
1976 (2) SA 1
(A) and Hutchinson v Grobler NO
and Others
1990 (2) SA 117
(T) at 157B-E.
[20.]
Johannesburg City Council above at 76D-H.
[21.]
Bato Star above at para 48.
[22.]
Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and
Others
[2010] ZACC 3
;
2010 (5) BCLR 422
(CC) at para 35, where it was
held:
“
In
general, a court of appeal, when deciding whether the judgment
appealed from is right or wrong, will do so according to the facts
in
existence at the time it was given and not according to new
circumstances which came into existence afterwards.”
[23.]
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC)
at paras 42-3.