Shilubana and Others v Nwamitwa (CCT03/07) [2007] ZACC 14; 2007 (9) BCLR 919 (CC); 2007 (5) SA 620 (CC) (17 May 2007)

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[2007] ZACC 14
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Shilubana and Others v Nwamitwa (CCT03/07) [2007] ZACC 14; 2007 (9) BCLR 919 (CC); 2007 (5) SA 620 (CC) (17 May 2007)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 03/07
[2007] ZACC 14
TINYIKO
LWANDHLAMUNI PHILLA
NWAMITWA
SHILUBANA First Applicant
WALTER
MBIZANA MBHALATI Second Applicant
DISTRICT
CONTROL OFFICER Third Applicant
PREMIER,
LIMPOPO Fourth Applicant
MEC FOR
LOCAL GOVERNMENT AND HOUSING,
LIMPOPO Fifth
Applicant
HOUSE FOR
TRADITIONAL LEADERS Sixth Applicant
CHRISTINA
SOMISA NWAMITWA Seventh Applicant
MATHEWS
TN NWAMITWA Eighth Applicant
BEN
SHIPALANA Ninth Applicant
ERNEST
RISABA Tenth Applicant
STONE
NGOBENI Eleventh Applicant
versus
SIDWELL
NWAMITWA Respondent
and
NATIONAL
MOVEMENT OF RURAL WOMEN First Amicus Curiae
COMMISSION
FOR GENDER EQUALITY Second Amicus Curiae
Heard
on : 17 May 2007
Decided
on : 17 May 2007
Reasons
furnished on : 8 June 2007
JUDGMENT
VAN DER
WESTHUIZEN J:
Introduction
and background
On
17 May 2007 this Court issued the following order in this matter:
“
1. The hearing is postponed
until 10h00 on Tuesday 4 September 2007.
2. The costs of the
postponement are reserved.
3. Directions regarding the
further conduct of this matter will be issued as soon as possible.
4. Reasons for this order will
be issued as soon as possible.”
The
order resulted from an application for a postponement by the
respondent, filed the day before the matter was scheduled to
be
argued in this Court. The application was opposed and oral
submissions were heard. In view of the nature of the matter and
the interest shown in it, an explanation for the postponement is
required. The reasons for the order now follow. The further
directions mentioned in the order appear in the last paragraph.
In
deciding the application for postponement, it is imperative to keep
the significance of the underlying issues and context in
mind.
1
This is a dispute for the right to succeed as Hosi (Chief) of the
Valoyi Tribe in Limpopo, between the first applicant (“the
applicant”), daughter of Hosi Fofoza Nwamitwa (“Hosi Fofoza”),
and the respondent, son of Hosi Mahlathini Richard Nwamitwa
(“Hosi
Richard”). When Hosi Fofoza died in 1968 without a male heir,
succession to Hosi of the Tribe was, according to tradition,
determined by the principle of male primogeniture. Therefore the
applicant, Hosi Fofoza’s oldest daughter, was not considered
for
the position. Instead, Hosi Fofoza’s younger brother, Richard,
succeeded him. Hosi Richard died in October 2001. During
his
reign, the tribal institutions seemingly decided to appoint the
applicant as Hosi, relying on the constitutional principle
of
equality. The relevant government officials approved the
appointment. However, the appointment came to be contested. In
2002 the respondent sought a declarator in the Pretoria High Court
that he, and not the applicant, is the rightful heir to be
Hosi of
the Valoyi Tribe. The High Court,
2
and eventually the Supreme Court of Appeal,
3
held in the respondent’s favour.
The
applicants applied for leave to appeal against the decision of the
Supreme Court of Appeal.
4
On 28 February 2007 the matter was set down for hearing in this
Court on 17 May 2007.
5
The National Movement of Rural Women and the Commission for Gender
Equality were admitted as amici curiae (friends of the court).
On
16 May 2007 the respondent filed an “Application [for]
Postponement and Leave to Dispute the Authority of Legal
Practitioners
to Act on Behalf of the Applicants in Terms of Rule
32 and Rule 9”.
This
matter appears to pose fundamental questions regarding the
interplay between customary law and the Constitution and to raise
delicate issues regarding the relationship between traditional
community structures and courts of law. How these matters are
resolved might be of paramount importance not only to the immediate
parties, but to the community of which they are a part, as
well as
the nation.
Submissions
in support of postponement
The
respondent made two general submissions regarding the application
for postponement. Firstly, he argued that the State Attorney
is
not authorised to represent the non-governmental applicants in this
matter, because such representation would not be on behalf
of the
government as required by statute.
6
To the extent that the State Attorney is permitted to continue
representing the applicants, however, the respondent argued that
he
too should receive funding from the State Attorney. Secondly, he
claimed that his lack of resources has left him ill-equipped
to
prepare properly for the hearing.
7
No
opinion is expressed on the first claim. Before this Court will
consider the argument, the appropriate procedures to bring
the
claim before the Court must be followed. No notice, for example,
has been given.
8
This Court also expresses no view on whether it would be
permissible and possible for the State Attorney to fund both sides
to the litigation. Furthermore, it would appear that, even if
meritorious, the respondent’s argument would not, on its own,
warrant a postponement – particularly one requested at this late
date. However, the respondent’s claim about his lack of
resources, which is related to his point about State Attorney
representation, requires more attention.
Until
15 May 2007, the respondent was only able to secure representation
of junior counsel, Mr BLM Bokaba. Two days before the
scheduled
hearing, however, the respondent was able to secure the services of
senior counsel, Mr M Motimele SC. Not only would
it have been
impossible for Mr Motimele to have adequately prepared himself for
a hearing involving important and complex issues
on two-days
notice, but he was otherwise engaged and could not represent the
respondent at the scheduled hearing, according to
the respondent.
Postponement
In
National Police Service Union and Others v Minister of Safety
and Security and Others
,
9
this Court was faced with an application for postponement in a
similar situation. The appellants applied for a postponement
the
day before the scheduled hearing, after apparently having reached
an agreement with the respondents that a postponement would
be
sought.
10
Accordingly, counsel for the respondents did not appear.
11
The Court found the reasons furnished to be inadequate and denied
the postponement.
12
It
was made clear in
National Police Service Union
that the
question is whether it is in the interests of justice for a
postponement to be granted by this Court. A postponement
cannot be
claimed as of right. The party applying for postponement must
therefore show good cause that one should be granted.
13
The factors to be taken into account include –
“
whether the application has
been timeously made, whether the explanation given by the applicant
for postponement is full and satisfactory,
whether there is
prejudice to any of the parties and whether the application is
opposed.”
14
(Footnote omitted.)
In
Lekolwane and Another v Minister of Justice and Constitutional
Development
15
this Court added the following factors to be considered in granting
a postponement: (1) the broader public interest; and (2)
the
prospects of success on the merits. The following factors could
non-exhaustively be added to the above: the reason for the
lateness
of the application if not timeously made; the conduct of counsel;
the costs involved in the postponement; the potential
prejudice to
other interested parties; the consequences of not granting a
postponement; and the scope of the issues that ultimately
must be
decided.
16
In balancing these factors it is of vital importance to keep in
mind that –
“
[w]hat is in the interests
of justice will . . . be determined not only by what is in the
interests of the parties themselves, but
also by what, in the
opinion of the Court, is in the public interest. The interests of
justice may require that a litigant be
granted more time, but
account will also be taken of the need to have matters before this
Court finalised without undue delay.”
17
A
standard way to mitigate prejudice to other parties is for the
party asking for the court’s indulgence to postpone a hearing
–
particularly one requested at the last minute – to offer, or to
be ordered, to pay the costs of the postponement.
18
Conduct
of respondent’s counsel
The
conduct of respondent’s counsel, Mr Bokaba, and perhaps that of
his instructing attorneys, is relevant to our consideration
of the
application for postponement. It deserves censure. The
untimeliness of the respondent’s submissions is the first

unsatisfactory aspect. The application for leave to appeal was
filed (albeit late) on 30 January 2007. The respondent’s notice
of intention to oppose was therefore due on 13 February 2007. It
was never filed. The respondent’s answering affidavit was
filed
only on 3 May 2007. The respondent’s written submissions were
due to be filed, in terms of the Chief Justice’s revised
directions dated 14 March 2007, on 30 April 2007. These too were
filed on 3 May 2007. And then, as mentioned, the respondent
filed
this application for postponement on 16 May 2007, the day before
the scheduled hearing.
The
explanation for the late filing of the submissions, as well as the
justification for the late date on which the application
for
postponement was filed, and indeed for the need to postpone at all,
was the respondent’s lack of funds. It is understandable
as an
explanation for the late filing and perhaps even in so far as the
application for postponement is concerned. The last-minute
nature
of the application for postponement is, however, inexcusable.
There is no reason why the application could not have been
filed at
any time after 28 February 2007, when the date of the hearing was
determined and furnished to all concerned. Although
the services
of senior counsel were only secured on 15 May 2007, the lack of
funds and the need for proper legal representation
were not sudden
developments.
At
the hearing counsel admitted that he was unprepared to present his
client’s case, should the application for postponement
be denied.
He appeared to presume that the application would be granted – a
presumption one makes at the peril of one’s
client. In
National
Police Service Union
it was stated:
“
Ordinarily . . . if an
application for a postponement is to be made on the day of the
hearing of a case, the legal representatives
. . .
must
appear and be ready to assist the Court both in regard to the
application for the postponement itself and if the application is
refused, the consequences that would follow.”
19
(Emphasis in original.)
Mr
Bokaba had known for some time that he alone represented his
client, and at least since 28 February 2007, that he would have
to
be prepared to argue the matter in this Court on 17 May 2007. He
did not prepare, and prior to the day before the hearing,
he felt
no need to communicate that fact to anyone. What would have
happened had senior counsel not been secured two days before
the
hearing remains unclear.
Counsel’s
conduct went from frustrating to astonishing. During oral argument
he matter-of-factly and repeatedly stated that,
despite the
respondent’s lack of funds, he had adamantly refused to do the
matter with funding from the Legal Aid Board. The
rates, he said,
are too low; the payments, he lamented, are too slow. As a
practising advocate, it is of course his decision
whether or not to
accept Legal Aid funding. He cannot be forced to do so. If he
refuses Legal Aid funding, however, he must
then either comply with
the Court’s rules and represent his client properly, or withdraw
from the brief timeously. His client
would then be free –
through his attorney – to approach one of the many legal
practitioners who might well be willing to
accept the fees and
render the required services. The system of state-sponsored legal
aid is aimed at providing legal services
to the many people who
would not otherwise have access to justice.
20
Mr
Bokaba is doing a disservice to his client, to his honourable
profession and to the constitutional principles his client seeks
to
vindicate. With this in mind, the Registrar of this Court is
directed to bring this judgment to the attention of the Pretoria
Bar Council.
However,
counsel’s conduct alone cannot be decisive of the application for
a postponement. The issues at stake are too important
not to
factor them into the equation. The fact that the courtroom was
filled with people who appeared to be interested members
of the
community, who probably had travelled from afar, underscores that.
The merits of the request for postponement must therefore
be
grappled with as well.
Equality
of arms
Counsel
for the respondent argued that the respondent and the applicants
were not represented on an equal basis before this Court.
This
argument was related to and based on the respondent’s claims
regarding State Attorney representation and insufficient
funding.
According to the respondent, the first applicant has unlawfully
been able to conduct this litigation using public resources,
whereas the respondent has had to fund his representation himself.
Because of a lack of funds, the respondent, until recently,
has
only been represented by junior counsel. Making matters worse, the
respondent has not been able to have portions of the
record
transcribed into braille for the benefit of Mr Bokaba, who is
unsighted. Mr Bokaba argued that, without the aid of senior
counsel, he was overmatched, and his client unfairly
under-represented before this Court.
The
respondent’s argument is essentially that, faced with applicants
unfairly represented by the State Attorney who briefed
senior
counsel, as well as two amici curiae who broadly support the
applicants’ case – six advocates in total – and hampered
by
insufficient funds, there was not an “equality of arms” between
the parties. This concept has its constitutional basis,
in the
civil context, in section 34’s guarantee of a fair public
hearing.
21
In this Court the term itself has been used in the criminal
context
22
and alluded to in the civil context.
23
Whatever the merits of the claim, it is not desirable, without
submissions by all concerned parties, to decide whether the concept
has any traction as it relates to civil proceedings in this Court.
Nor is it necessary to decide whether an “inequality of
arms”
actually existed, what an appropriate counsel ratio might be and
whether an inequality necessitated a postponement in
this case. In
other words, we need not address the question whether the asserted
imbalance of representation – an assertion
made despite the fact
that the respondent has prevailed in both the High Court and the
Supreme Court of Appeal – is constitutionally
cognisable or
problematic.
24
The central issue is what the interests of justice dictate in the
present matter. One of the questions to be asked in this
regard is
whether the parties are effectively represented, given the nature
of the issues to be decided.
The
interests of justice
In
response to a question from the bench, counsel for the respondent
expressly stated that he was not in a position to represent
his
client effectively. He felt overwhelmed and uncomfortable. The
interests of the affected parties are too weighty, the importance
for the community too high and the benefit of prepared argument too
great, to proceed undeterred by these circumstances. In
view of
the fact that senior counsel was secured at the last minute, a
postponement may result in more helpful argument. When
considering
the interests of justice there is room to consider the alignment of
both amici with the applicant, the one-to-six
counsel ratio in this
case and the fact that senior counsel could be helpful in wading
through difficult and important constitutional
issues.
This
Court is not unmindful of the considerable costs of this decision.
The time, effort and commitment of the parties, the amici,
the
Court and the community have been considered. On balance, however,
one has to conclude that it is in the interests of justice
for the
hearing to be postponed. This Court is ultimately persuaded that
the benefits to the respondent, the Valoyi community
and the
process of constitutional decision-making outweigh the conduct of
respondent’s legal representatives and the costs
associated with
postponement. This certainly does not mean that it is generally
open for counsel to make eleventh-hour applications
for
postponement claiming an imbalance of counsel or lack of
preparation. Only in an exceptional case will an application of
this kind succeed. And even then, conduct of this sort is worthy
of censure.
Costs
In
his notice of motion the respondent sought a costs order against
the applicants on the scale of attorney and own client, despite
the
fact that it was the conduct of the respondent’s legal
representatives that forced the other parties, the Court and the
community to prepare and to attend the hearing on 17 May 2007.
During oral argument, counsel for the respondent did not pursue
this position, but proposed that costs be ordered to be costs in
the cause. Counsel for the applicants recognised that a cost
order
against the respondent at this stage would not serve to mitigate
prejudice, but would be futile. The respondent’s justification
for requesting a postponement is, after all, his inability to fund
his own counsel. Nor would it make sense for the costs of
postponement to be costs in the cause. Whether the applicants or
respondent is ultimately successful, this Court will not

necessarily award costs in a case involving important
constitutional questions.
25
Moreover, the additional costs incurred on the basis of the
postponement are not related to the ultimate merits of the appeal.

Accordingly, the issue of costs was reserved. It may be argued in
conjunction with the hearing on 4 September 2007, when issues
regarding funding will be clearer and argument may benefit from the
presence of senior counsel on the side of the applicants
as well as
the respondent.
Directions
In
view of the above, the following directions are issued:
1. The application for leave to appeal against the judgment of the
Supreme Court of Appeal and the application for condonation
are set
down for hearing on Tuesday 4 September 2007 at 10h00, in terms of
the order of this Court dated 17 May 2007.
2. Supplementary
written argument, if any, shall be lodged –
(a) on behalf of the respondent, on or before 10 July 2007; and
(b) on behalf of the applicants and the amici, on or before 31 July
2007.
3. Should the respondent wish to dispute the authority of the State
Attorney to represent any of the applicants, proper notice
should be
given in terms of the relevant rules of Court. The respondent must
apply for condonation should notice not be given
within the required
time.
4. The
Registrar is directed to serve a copy of this judgment on the
applicants, respondent, amici, the Commission on Traditional
Leadership Disputes and Claims, the Congress of Traditional Leaders
of South Africa and the Pretoria Bar Council.
Langa
CJ, Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde J, O’Regan
J, Sachs J and Skweyiya J concur in the judgment of
Van der
Westhuizen J.
For
the Applicants: Advocate IAM Semenya SC, Advocate SBS Dlwathi and
Advocate NI Mayet, instructed by The State Attorney, Pretoria.
For the Respondent: Advocate BLM Bokaba, instructed by Mashobane
Attorneys.
For
Amicus Curiae National Advocate G Budlender and Advocate R Movement
of Rural Women: Moultrie, instructed by the Legal Resources
Centre.
For
Amicus Curiae Commission Advocate K Pillay, instructed by the Legal
for Gender Equality: Resources Centre.
1
See
Sibiya
and Others v Director of Public Prosecutions, Johannesburg High
Court and Others
2006 (2) BCLR 293
(CC) at para 6.
2
Nwamitwa v Phillia and Others
2005 (3) SA 536 (T).
3
Shilubana and Others v Nwamitwa
(Commission for Gender Equality as
Amicus Curiae
)
2007 (2) SA 432
(SCA).
4
The
applicants also applied for condonation for the late filing of the
application for leave to appeal.
5
The
parties were instructed to address the following issues in written
argument:
“
(a) Does the Royal family have the authority to
develop the customs and traditions of the Valoyi community so as to
outlaw gender
discrimination in the succession to traditional
leadership?
(b) In the course of developing the customs and the
traditions of a community, does the Royal Family have the authority
to restore
the position of traditional leadership to the house from
which it was removed by reason of gender discrimination even if this
discrimination
occurred prior to the coming into operation of the
Constitution?
(c) Are the provisions of the Traditional Leadership
and Governance Framework Act [41 of] 2003 applicable to these
proceedings?
(d) If the provisions of the Traditional Leadership and
Governance Framework Act [41 of] 2003 are applicable, is the dispute
relating
to the restoration of traditional leadership the kind of
dispute that ought to be dealt with by the Commission as required by
Section
21(1)(b) read with section [25(2)] of the Traditional
Leadership and Governance Framework Act [41 of] 2003?”
6
See
section 3 of the State Attorney Act 56 of 1957.
7
In
his affidavit, the respondent also alleged several problems with the
record submitted by the applicant to this Court, but his
counsel did
not pursue this point during oral argument.
8
See
Rule 9 of the Constitutional Court Rules.
9
[2000] ZACC 15
;
2000
(4) SA 1110
(CC);
2001 (8) BCLR 775
(CC).
10
Id
at paras 1 and 2.
11
Id
at para 2.
12
Id
at para 6.
13
Id
at para 4.
14
Id.
15
[2006] ZACC 19
;
2007
(3) BCLR 280
(CC) at para 17.
16
Some of these factors have been recognised by other courts over
time. See for example
Madnitsky
v Rosenberg
1949 (2) SA 392
(A) at 399;
Ngcobo
v Union & South West African Insurance Co Ltd
1964 (1) SA 42
(D) at 44F-G;
Myburgh
Transport v Botha t/a SA Truck Bodies
1991 (3) SA 310
(NmS) at 315B-G. See also Van Winsen et al
Herbstein and Van
Winsen
The Civil
Practice of the Supreme Court of South Africa
4 ed (Juta & Co, Ltd, Kenwyn 1997) at 666-668.
17
National
Police Service Union
above n at para 5.
18
See
for example id at para 2; Van Winsen et al above n at 668.
19
Above
n at para 7.
20
Section
3 of the Legal Aid Act 22 of 1969 (as amended) states that the
objects of the Legal Aid Board “shall be to render or make
available legal aid to indigent persons and to provide legal
representation at State expense as contemplated in the Constitution
. . . .” The Legal Aid Board has funded a number of cases with
considerable public impact. See for example
Masiya
v Director of Public Prosecutions (Pretoria) and Another (Centre for
Applied Legal Studies and Another as Amici Curiae)
CCT 54/06, 10 May 2007, as yet unreported;
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC).
21
Section
34 of the Constitution states:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
22
See
Ex Parte
Institute for Security Studies: In re S v Basson
[2005] ZACC 4
;
2006 (6) SA 195
(CC);
2006 (2) SACR 350
(CC) at para 15:
“
As
a general matter, in criminal matters a court should be astute not
to allow the submissions of an
amicus
to stack the odds
against an accused person. Ordinarily, an accused in criminal
matters is entitled to a well-defined case emanating
from the State.
If the submissions of an
amicus
tend to strengthen the case
against the accused, this is cause for caution. This, however, is
not an inflexible rule. But it
is a consideration based on
fairness, equality of arms, and more importantly, what is in the
interests of justice.”
23
See
Bernstein and
Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at fn 154: “The
principle of ‘equality of arms’, implicit in the right to a fair
trial, has not been applied to situations
such as the one we are
considering in the case before us.”
24
The
Court is grateful, however, for the helpful submissions in this
regard by counsel for the first amicus.
25
See
for example
Executive
Council, Western Cape v Minister of Provincial Affairs and
Constitutional Development and Another; Executive Council,
KwaZulu-Natal v President of the Republic of South Africa and Others
[1999] ZACC 13
;
2000 (1) SA 661
(CC),
1999 (12) BCLR 1360
(CC) at para 138.