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[2018] ZASCA 2
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Mandela v Executors Estate Late Nelson Rolihlahla Mandela and Others (131/17) [2018] ZASCA 2; [2018] 1 All SA 669 (SCA); 2018 (4) SA 86 (SCA) (19 January 2018)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 131/17
In
the matter between:
NOMZAMO
WINIFRED ZANYIWE
MADIKIZELA
MANDELA
APPELLANT
and
THE
EXECUTORS ESTATE LATE
NELSON
ROLIHLAHLA MANDELA
FIRST
RESPONDENT
THE
REGISTRAR OF DEEDS, MTHATHA
SECOND RESPONDENT
MINISTER
OF LAND AFFIARS FOR
THE
REPUBLIC OF SOUTH AFRICA
THIRD RESPONDENT
THE
PRESIDENT OF THE REPUBLIC
OF
SOUTH AFRICA
FOURTH RESPONDENT
THE
NELSON MANDELA FAMILY
TRUST
FIFTH RESPONDENT
THE
MASTER OF THE HIGH COURT,
SOUTH
GAUTENG
SIXTH RESPONDENT
GRACA
MACHEL
SEVENTH REPONDENT
EBOTWE
TRIBAL AUTHORITY
EIGHT
RESPONDENT
ZWELIDUMILE
MBANDE
NINTH RESPONDENT
Neutral
citation:
Mandela v The Executors, Estate Late Nelson
Rolihlahla Mandela & others
(131/17) [2017] ZASCA02 (19
January 2018)
Coram:
Shongwe AP and Swain and Mathopo JJA and Mokgohloa and Rogers
AJJA
Heard:
16 November 2017
Delivered:
19 January 2018
Summary:
Administrative law – common law review – unreasonable
delay – assumption of prospects of success on
merits – outweighed by potential for severe resultant prejudice
– refusal of condonation – whether court justified
in
mulcting appellant with costs.
ORDER
On
appeal from:
The Eastern Cape Local Division, Mthatha (Makgoba JP
and Van der Merwe and Teffo JJ sitting as court of first instance):
1
The appeal against the costs order granted by the court a quo against
the appellant in favour of the third respondent is upheld.
2
The costs order granted by the court a quo against the appellant in
favour of the third respondent is set aside and substituted
with the
following:
‘
As
regards costs between the appellant and the third respondent, each
party should bear its own costs’.
3
The appeal against the dismissal of the review application is
dismissed.
4
The appellant is ordered to pay the first respondent’s costs
including costs of two counsel.
JUDGMENT
Shongwe
AP (Swain and Mathopo JJA and Mokgohloa and Rogers AJJA
concurring)
[1]
This appeal, with special leave of this court, raises the question
whether the court a quo was correct to dismiss the appellant’s
review application with costs on the basis that she delayed
unreasonably in launching the application and that the delay should
not be condoned. It also raises the question of the relevance of the
Biowatch
case on costs, where a litigant is unsuccessful
against the State. (
Biowatch Trust v Registrar,
Genetic Resources & others
2009 (6)
SA 232
(CC)).
[2]
On 16 November 1997, the third respondent, the Minister of Land
Affairs for the Republic of South Africa (the Minister), took
a
decision to donate ‘Lot, Kwa-Madiba (portion of A.A. No. 20
called QUNU) situated in the Administrative District of Umtata
Province of the Eastern Cape’, in extent 96, 8959 hectares (the
property), to Mr Nelson Rolihlahla Mandela (Mr Mandela),
the late
former President of the Republic of South Africa. This donation took
place after a final decree of divorce had been granted
on 19 March
1996 in respect of a civil marriage that existed between the late Mr
Mandela and Mrs Nomzamo Winifred Madikizela Mandela,
the appellant.
On 5 December 2013 Mr Mandela passed on and left a will in which he
bequeathed the property to the Nelson Rolihlahla
Mandela Family Trust
(the Trust) in the following terms:
‘
I
bequeath the Qunu Property and the movable assets of my estate in or
on it at the time of my death, to THE NRM FAMILY TRUST. It
is my wish
that the trustees of THE NRM FAMILY TRUST administer the Qunu
Property for the benefit of the MANDELA family and my
third wife and
her two children, MALENGANE MACHEL and JOSINA MACHEL. The Qunu
Property should be used by my family in perpetuity
in order to
preserve the unity of the MANDELA family.’
The
‘third wife’ in the above clause is a reference to Ms
Graca Machel whom Mr Mandela married on 18 July 1998. She
was cited
as the seventh respondent.
[3]
On 14 October 2014 the appellant instituted review proceedings in
which she sought an order declaring the Minister’s decision
of
16 November 1997 to donate the property as null and void;
alternatively, reviewing and setting aside that decision and
ancillary
relief. She also sought an order declaring as invalid the
legacy set out in clause 4.5.3 of the will of the late Mr Mandela in
respect of the property in question.
[4]
The review application was heard by the Eastern Cape Local Division
of the High Court, Mthatha (Makgoba JP and Van der Merwe
and Teffo
JJ) and dismissed with costs including the costs of two counsel. The
subsequent application for leave to appeal was also
dismissed with
costs. Aggrieved by this decision, the appellant applied to this
court for special leave to appeal, which was granted
on 20 January
2017.
[5]
The first respondent, the executors of the estate late NR Mandela
(the executors) and the Minister oppose the appeal (I shall
hereafter
refer to the executors and the Minister as ‘the respondents’).
The other respondents abide the decision of
this court. The court a
quo dismissed the review application mainly on the basis that there
was an unreasonable delay which resulted
in severe prejudice to the
respondents. It did not extensively deal with the merits of the
review but made reference thereto when
considering whether to condone
the appellant’s unreasonable delay in launching the review
proceedings and whether the appellant
had reasonable prospects of
success on the merits. It concluded that almost 17 years had gone by
without the appellant doing anything
to claim or assert her rights.
The delay was therefore inordinate with no acceptable explanation as
to why she took so long to
assert her rights.
[6]
The appellant contended that she was not aware of the donation made
by the Minister to Mr Mandela and only became aware of it
during
August 2014 after obtaining a copy of Mr Mandela’s will. Until
then, so she says, she did not know that Mr Mandela
was the
registered owner of the property or that he thought himself entitled
to dispose of it. She also contended that the respondents
did not
dispute that she lacked knowledge of the donation. She further
contended that she is the rightful holder of the right to
occupy the
property, or at least, the small portion initially allocated to her
by the acting paramount chief
Daliguba Joyi,
in consultation with the local community. This, she contended, took
place around 1989 and 1990, while Mr Mandela was incarcerated
on
Robben Island. She claims the property on the basis that she is
entitled to the property by virtue of the fact that her customary
marriage to Mr Mandela was not dissolved, notwithstanding the fact
that their civil marriage had been dissolved by the issue of
a final
decree of divorce. Thus she personally acquired the property in
accordance with the custom of the Abathembu clan, to which
both she
and Mr Mandela belonged. She contended that until and unless her late
husband claimed his lobola back, the customary marriage
remained
extant.
[7]
A brief factual background, which is not disputed, is that Mr and Mrs
Mandela were married in terms of customary law in 1958.
Subsequently
on 14 June 1958 they concluded a civil marriage out of community of
property. In 1964 Mr Mandela was convicted and
sentenced to life
imprisonment and eventually released in February 1990. He built a
home in Qunu (on the property), between 1993
and 1995. At this stage
the Qunu property was only about nine hectares in extent. On 13 April
1992 Mr Mandela publicly declared
that his marriage had broken down
irretrievably and subsequently instituted divorce proceedings. As
stated earlier a final decree
of divorce was granted on 19 March
1996. The appellant contested the divorce and filed a counterclaim.
It is not clear from the
evidence what happened to the counterclaim.
The final order of divorce is silent regarding the proprietary rights
of the parties.
[8]
It must be made clear from the outset that the administrative action
and the impugned decision must be adjudicated in terms
of the common
law and not in terms of the Promotion of Administrative Justice Act 3
of 2000 (PAJA). The impugned decision was taken
in 1997, long before
the coming into effect of PAJA. In
Associated Institutions Pension
Fund & others v Van Zyl & others
2005 (2) SA 302
(SCA)
para 46, it was held that since PAJA only came into operation on 30
November 2000, after the impugned decision in that case
was taken,
the validity of the defence of unreasonable delay had to be
considered with reference to common law principles. Indeed,
counsel
for the appellant correctly conceded that the provisions of PAJA were
not applicable to the present dispute. In
Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs and Tourism & others
[2004] ZACC 15
;
2004 (4) SA 490
(CC); 2004 (7) BCLR (CC) in para 22 the
Constitutional Court remarked that ‘the extent to which the
common law remains relevant
to administrative review will have to be
developed on a case-by-case basis as the courts interpret and apply
the provisions of
PAJA and the Constitution.’ (See also
Pharmaceutical Manufacturers Association of South Africa &
another: In re Ex parte President of the Republic of SA & others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
(2000) (3) BCLR 241)).
[9]
In
Van Zyl
para 46-47, it was pointed out that it is desirable
and in the public interest that finality be reached within a
reasonable time,
in respect of judicial and administrative decisions
and litigation in general. It was a long-standing rule that courts
have the
power, as part of their inherent jurisdiction to regulate
their own proceedings, to refuse a review application if the
aggrieved
party has been guilty of unreasonable delay in initiating
the proceedings. The rationale for the long-standing rule is twofold:
First, the failure to bring a review within a reasonable time may
cause prejudice to the respondent. Second, there is a public
interest
element in the finality of administrative decisions and the exercise
of administrative functions. The application of the
rule requires
consideration of two questions. Namely, was there an unreasonable
delay? If so, should the delay in all the
circumstances be
condoned?
[10]
In
Van Zyl
para 48, it was stated that the reasonableness or
unreasonableness of a delay is dependent on the facts and
circumstances of each
case. It is a matter of a factual enquiry upon
which a value judgment is called for in the light of all the relevant
circumstances,
including any explanation that is offered for the
delay. It is an investigation into the facts of the matter in order
to determine
whether, in all the circumstances of the case, the delay
was reasonable. In
Gqwetha v Transkei Development Corporation Ltd
& others
2006 (2) SA 603
(SCA) para 24, it was pointed out
that a material fact to be taken into account in making that value
judgment was the nature of
the challenged decision, as not all
decisions have the same potential for prejudice, which may result
from their being set aside.
It was emphasised in
Van Zyl
that
although this involved the exercise of a value judgment, it was not
to be equated with the judicial discretion involved in
the next
question if it arose, namely, whether a delay which has been found to
be unreasonable should be condoned.
[11]
I turn to consider whether the court a quo correctly concluded that
the appellant had unduly and unreasonably delayed in launching
the
application for review. The court a quo having referred to the
evidence of the appellant, which was not disputed by the
respondents,
that she only became aware of the challenged decision when she became
aware of the contents of the will in August
2014, phrased the
question to be answered as follows, ‘when a reasonable person
in the shoes of Mrs Mandela would have acquired
knowledge of the
Minister’s decision?’
[12]
In Van
Zyl
para 51 the learned Judge observed that:
‘
In
my view there is indeed a duty on the applicants not to take an
indifferent attitude but rather to take all reasonable steps
available to them to investigate the reviewability of administrative
decisions adversely affecting them
as soon as they are aware of
the decision.
Whether
the applicants in a particular case have taken all reasonable steps
available to them in compliance with this duty, will
depend on the
facts and circumstances of each case’. (Emphasis added.)
(See
also
Drennan Maud and Partners v Pennington Town Board
[1998] ZASCA 29
;
1998
(3) SA 200
(SCA)).
[13]
The present case may be regarded as distinguishable from this passage
because here there was no unreasonable delay from the
date on which
the appellant claims to have learnt of the impugned decision. In my
view, however, the same principle applies where
there are
circumstances which should have alerted an applicant to the existence
of a decision adverse to her rights. Reasonable
vigilance of
one’s rights is required. The failure to investigate such
circumstances has the same potential to prejudice
other parties as a
failure to act promptly after learning of the adverse decision
[14]
The court a quo decided that a reasonable person in the position of
the appellant would have regarded recognition of her rights
to the
property as a critical issue in the divorce proceedings. Such a
reasonable person would have asserted the rights to the
property
during the divorce proceedings and would accordingly have uncovered
the steps taken to donate the land to Mr Mandela.
However, as
correctly pointed out by the appellant the decision to dispose of the
property to Mr Mandela was only taken in November
1997, and the civil
divorce took place in 1996. Nevertheless, the appellant’s
conduct is not consistent with that of a reasonable
person who would
have taken steps to establish the outcome of her counterclaim and the
fate of her claim to the property.
[15]
In addition, the court a quo pointed out that the house on the
property was built during the period from 1993 to 1995 and the
statement by the appellant that she contributed to this was
disingenuous as no proof of the contribution she made was produced.
The respondents point out that the property on which the house was
located was greatly increased in size. On 5 January 1996
Chief
Mtirara wrote a letter to the magistrate in Mthatha stating that the
extension of the original site of Mr Mandela from nine
hectares to
approximately 101.5 hectares carried the approval of the relevant
tribal authority
.
In addition, the executors point out
that the allotment of the property to Mr Mandela was done publicly
where King Dalindyebo
and other local chiefs were present
representing the Ebotwe Tribal Authority. In response Mr Mandela
donated a sum of R150 000
to the residents of Qunu to be used
for a community project. This is borne out in a letter dated 10
November 1997 from Sangoni
Incorporated, the attorneys who
represented Mr Mandela.
[16]
It appears that after his divorce Mr Mandela conducted himself as the
owner of the house, without any recognition of any rights
of the
appellant. In addition, the property was vastly extended and improved
from the resources of Mr Mandela. At some stage after
the Qunu
property was registered in Mr Mandela’s name on 24 February
1998, extensive building was done to construct a much
larger home
than the one built during 1993-1995. Precisely when this occurred is
unclear but the executors included in their answering
papers a
resolution by the NRM Family Trust dated 7 October 2002 in terms of
which the trust resolved to enter into a building
contract to the
value of R4 548 600 for the construction of a residence on
Qunu. This, in my view, should have raised
the appellant’s
eyebrows as regards the land itself. She could hardly have thought,
after the divorce, that Mr Mandela would
erect a mansion for her
benefit. Indeed, the uncontested evidence is that even at the time of
the divorce Mr Mandela and the appellant
had not spoken for several
years. The executors raised the same issues in order to show that
there was an unreasonable delay and
that a reasonable person in the
shoes of the appellant would have reacted swiftly to assert her
alleged right to the property.
I therefor agree with the court a quo
that there was an unreasonable delay by the appellant in instituting
the review proceedings.
(See
Gqwetha
para 49 and
Khumalo &
another v MEC for Education, KwaZulu-Natal
[2013] ZACC 49
;
2014
(5) SA 579
(CC) para 48).
[17]
I turn to consider whether the court a quo in the exercise of its
discretion correctly concluded that the unreasonable delay
should not
be condoned, with the result that the application for review could
not be entertained. Of primary concern in this inquiry
is the
inherent potential for resultant prejudice to the heirs of Mr Mandela
if the challenged decision is set aside. In
Gqwetha
para 23
the majority judgment remarked that:
‘
[P]roof
of actual prejudice to the respondent is not a precondition for
refusing to entertain review proceedings by reason of undue
delay,
although the extent to which prejudice has been shown is a relevant
consideration that might even be decisive where the
delay has been
relatively slight’.
(See
also
Wolgroeiers
Afslaers v
Munisipaliteit van Kaapstad
1998 (1) SA 13
(A) at 38H-42D
at 42C).
[18]
In
Gqwetha
paras 33-35, it was pointed out that whether the
delay should be condoned cannot be evaluated in a vacuum, but only
relative to
the challenged decision and particularly with the
potential for prejudice in mind. The prospect of setting aside the
decision,
ie the merits of the case, was not a material consideration
in the absence of an evaluation of what the consequences of setting
aside the decision were likely to be. The prospect (or lack of it) of
a meaningful consequence to the setting aside of an administrative
decision, rather than merely the prospect of the administrative
decision being set aside, might be a relevant consideration to
take
into account.
[19]
The appellant’s challenge to the lawfulness of the decision of
the Minister to donate the property to Mr Mandela and
the subsequent
transfer and registration of the property into Mr Mandela’s
name, was based upon the allegation
that a formal resolution
by the community of Qunu, was not obtained in respect of the donation
of the land to Mr Mandela, as required
in terms of s 3 of the
Upgrading of Land Tenure Rights Act 112 of 1991. It was also alleged
that the disposal of the property by
the Minister was made without
complying with the provisions of the
Interim Protection of Informal
Land Rights Act 31 of 1996
, which required that the informal rights
holders consent to the disposal, before being stripped of their
informal rights.
[20]
The Minister however denied these assertions, contending that he had
at his disposal information and documents which formed
part of the
Record of Decision, including an internal memorandum from the
officials in the Minister’s office, a resolution
from the
Ebotwe Tribal Authority authorising the registration of the deed of
grant in respect of the property, and copies of the
Permission to
Occupy (PTO) allotment in favour of Mr Mandela dated 5 January 1995
or 1996. Although some of the copies of documents
referred to are
illegible, we were told that these are the best copies available.
This is the sort of thing which can happen where
a claimant lets the
grass grow under her feet. Counsel for the Minister was at pains to
explain the status of the PTO and suggested
that these were issued by
the Department of Local Government and Land Tenure in terms of a
Proclamation. The submissions were difficult
to follow. Neither side
properly addressed the legislative regime under which the PTO was
purportedly issued. The PTO itself refers
to
s 3(
k
)
of a Transkeian Proclamation 10 of 1966 which is not readily
available to us and which neither side furnished to the court. After
the hearing the Minister’s counsel provided to the court a copy
of Location Regulations: Unsurveyed Districts: Transkeian
Territories, No 26 of 1936. How these bear on the matter is not
self-evident.
[21]
In support of her customary law claim to the property, the appellant
says she believed that she was still married to Mr Mandela
in terms
of customary law even after the dissolution of their civil marriage.
She contended that Mr Mandela also believed and lived
in accordance
with the Abathembu custom. However, notwithstanding the advice from
her mother-in-law that she was entitled to have
her own house, she
never asserted her right to have her own house, to the exclusion of
Ms Machel. She alleged that she visited
the property even after the
final decree had been granted but at no stage did she protest that Ms
Machel was not entitled to occupy
what she claims to be her house.
She gave no particulars as to how often and under what circumstances
she visited the Qunu property.
The executors’ evidence
indicates that in the main it was used by Mr Mandela and his third
wife, Ms Machel.
[22]
If Mr Mandela lived strictly in accordance with the Abathembu
customs, he would have claimed his lobola back in order to bring
the
customary marriage to a final end. But, apparently he did not,
because he believed that the marriage bond between himself and
the
appellant had been finally put asunder by the decree of divorce.
Of significance in this regard is what Mr Mandela
himself said
in para 22 of his unsigned affidavit in opposing an application for
the postponement of the divorce proceedings:
‘
[I]t
is correct that it is customary among the
Tembus
for a person in my position to have regard to our customs and
traditions. I have respected them in the past and will continue to
do
so now and in future.
However I know of no custom or tradition
that deals with the dissolution of a civil marriage by the courts
’.
(Emphasis added.)
It
is therefore clear that Mr Mandela regarded the decree of divorce as
being determinative of any rights flowing from the marriage
concluded
between the appellant and himself. That he did not claim the return
of his lobola, is a clear indication that he regarded
the marriage as
at an end, in terms of customary law. In any event, there is very
little evidence to prove that the custom of claiming
the lobola back
was followed by the wider Abathembu clan.
[23]
There are conflicting opinions between the experts called by both
parties as to the effect upon a customary marriage
of a decree of
divorce. One opinion confirms the existence of the custom that the
customary marriage remains extant even after
the dissolution of the
civil marriage (Prof R B Mqeke for the appellant). The other, Prof D
S Koyana for the executors, opines
that courts have expressed
themselves clearly (and perhaps somewhat harshly) against the
inclination to import customary marriage
rules into civil rites
marriages, which is offensive precisely because the (unpurified)
customary marriage pre-1998 was not recognised
as a valid marriage.
[24]
In the result the court a quo concluded that the appellant’s
prospects of showing that the customary marriage remained
in
existence appeared to be tenuous. As regards the appellant’s
claim to the property in reliance upon her status as the
second
customary wife of the late Mr Mandela, the court a quo concluded that
the appellant’s prospects of showing that the
original site and
the extended site were allocated to her in her personal capacity,
were not strong. The court a quo also
found that in the absence
of a right to the property, the appellant may not achieve anything
meaningful in reviewing and setting
aside the decision of the
Minister. The court a quo therefor refused to grant an order
declaring as null and void, the decision
by the Minister to donate
the property to Mr Mandela. The court a quo then dismissed the review
application on the basis that the
unreasonable delay of the appellant
should not be condoned, regard being had to the nature and strength
of the merits of the application,
as well as the prospects of the
appellant achieving anything meaningful, by setting aside the
decision of the Minister.
[25]
It should be noted that with regard to the issue of whether the
appellant would achieve anything meaningful by setting aside
the
decision of the Minister, although Counsel for the appellant accepted
that the appellant and her children would be entitled
to use the
property in terms of the provisions of Mr Mandela's will, as set out
above, Counsel stated that the meaningful result
for the appellant if
her claim to the property was upheld, would be that she would then be
entitled to exclude Ms Machel from using
the property. For reasons
which will become apparent, I find it unnecessary to determine
whether the court a quo was correct or
not, in the conclusions it
reached on the merits of the appellant’s claim.
[26]
I turn to the issue of the potential for resultant prejudice if the
decision of the Minister is set aside, which is inextricably
connected to the finding of unreasonable delay. As stated in
Liberty
Life Association of Africa v Kachelhoffer NO & others
2001 SA
1094
(C) at 1114;
‘
The
enquiry into whether prejudice is present or not entails comparing
the present position of the other parties involved with what
it would
have been had proceedings been instituted within a reasonable time.
Prejudice will be considered to be present if because
of the delay
the recollections of parties or the person whose decision is being
reviewed have paled; persons who have to depose
to affidavits or
testify are no longer available; and where documentary or other forms
of evidence are no longer available.’
[27]
In this case Mr Mandela is not available to put his side of the story
which compromises the principle of
audi alteram partem.
Although the appellant had a number of witnesses in support of her
version as to how the Qunu property was allocated to her by
the
tribal leaders, the weight of this evidence might have been
diminished if Mr Mandela himself had been alive to give his version.
All the evidence and the conduct of Mr Mandela indicate that he
genuinely believed that the Qunu property was his to the exclusion
of
the appellant. The original modest dwelling constructed on the
property over the period 1993-1995 was built at a time when he
and
the appellant were separated from each other and hardly talking. The
mansion was erected after they were divorced and was used
by himself
and his new wife. The appellant must have been aware of such
improvements and adopted a supine attitude towards her
alleged claim.
She provided no acceptable evidence that she contributed financially
to the improvements on the property. Mr Mandela
allowed the property
to be donated to himself and to be registered in his name. He
disposed of it by will. Absent any dishonest
and unworthy intentions
to the late Mr Mandela, one is bound to conclude that there is some
important part of the story which the
court did not hear because the
review was only instituted after Mr Mandela’s death.
[28]
I agree with the submission by the respondents that a
reasonable person in the position of the appellant would have
asserted a right
to ownership of the property before the death of Mr
Mandela. To wait until after his death is extremely prejudicial to
his estate
and heirs because his version of events is not available.
Part of the prejudice lies in the very fact that,
because the appellant’s claim was only asserted after Mr
Mandela died, the
evidence in her favour may now seem to be stronger
than it would have been had Mr Mandela’s counter-version been
before the
court.
[29]
Another relevant consideration is that if Mr Mandela had been aware
of this claim in good time, he most probably would have
devolved his
estate differently. He bequeathed substantial sums to the children,
grandchildren and great-grandchildren from his
marriage with the
appellant. If he had known that the appellant laid claim to the
Qunu property for herself and for the benefit
of the children from
her marriage to Mr Mandela, he may well not have made these bequests
or may have bequeathed more modest amounts.
He may have taken steps
to exclude her as a beneficiary of family trusts on the basis that
the value of the Qunu property would
be sufficient for her and the
descendants from that marriage.
[30]
Be that as it may, I am prepared to assume, without deciding, that on
the evidence before the court the appellant’s case
on the
merits has good prospects of success and that a meaningful result for
the appellant would be achieved by setting aside the
decision of the
Minister. These assumed prospects of success are however not
sufficient to swing the balance in her favour when
it comes to the
discretion as to whether to overlook the delay, when due regard is
had to the
potential for severe resultant prejudice if the
decision of the Minister is set aside.
[31]
It must be made clear that the decision to dismiss the appeal is
exclusively based on the excessive undue delay coupled with
the
potential for severe resultant prejudice to be suffered by the
respondents, and the lack of an acceptable explanation for the
unreasonable delay.
The following warrants mentioning:
It should be noted that although customary law marriages were not
recognised in South African
law until 1998,
s 2
of the
Recognition of
Customary Marriages Act 120 of 1998
provides that a marriage which is
a valid marriage at customary law and existed at the commencement of
this Act is for all purposes
recognised as a marriage. This narration
is to clarify the fact that the appellant’s customary law right
and constitutional
right to property were not simply ignored by this
court. Even if the appellant were to succeed in asserting her
customary law claim
to the property, she would not be entitled to the
whole property measuring (96, 9856) hectares simply because her right
of possession,
customarily, would have been limited to the small
portion allegedly allotted to her by the King and the local community
in her
capacity as the second wife to the late Mr Mandela. If the
appellant’s case was confined to the small portion of the
entire
property without conflating it with the larger portion which
was donated by the Minister in 1997, perhaps her case would have been
adjudicated differently.
[32]
I now turn to deal with the question of costs. On the face of it the
case sought to be made by the appellant does not appear
to be of a
constitutional nature. However, on analysis I think in essence she
was challenging the legality of a decision of the
Minister to donate
what she alleged to be her property to Mr Mandela. The litigation
thus implicated the constitutional principle
of legality as well as
her rights to property (s 25 of the Constitution). See
Harrielall
v University of KwaZulu-Natal
(CCT100/17)
[2017] ZACC 38
(31 October 2017) paras 17-18. It is settled law that
unsuccessful litigants who approach the court, in good faith, to
assert constitutional
rights, should not be discouraged to do so for
fear of having costs awarded against them. (See
Biowatch
para 21 and
Affordable Medicines Trust &
others v Minister of Health & others
[2005] ZACC 3
;
2006
(3) SA 247
(CC) para 138).
[33]
If the appellant’s delay justified a conclusion that the
institution of the review proceedings was frivolous or vexatious
or
manifestly inappropriate, this may have justified a departure from
Biowatch
.
However, the fact that a delay is found by the court to be
objectively unreasonable does not mean that the litigation is
frivolous
or vexatious in the sense contemplated in the
Constitutional Court jurisprudence. The court a quo did not find that
the appellant’s
institution of the proceedings was frivolous or
vexatious; she was ordered to pay costs on the sole basis that no
constitutional
issues were decided in the light of the finding on
delay. I do not think that this in itself warrants a departure from
Biowatch
nor
am I persuaded that the appellant’s institution of the
proceedings was vexatious or frivolous or manifestly inappropriate.
[34]
In this regard the court a quo thus misdirected itself by ordering
the appellant to pay the costs as against the Minister.
The appeal
must succeed on the costs issue against the Minister, I am of the
view that each party should bear its own costs. However,
as regards
the first respondent and the appellant these are private persons in
their private capacities, therefore the
Biowatch
principles should not be applicable (cf
Turnbull-Jackson
v Hibiscus Court Municipality & others
[2014]
ZACC 24
;
2014 (6) SA 592
(CC) para 99).
[35]
On the basis that the appellant instituted the review proceedings
after 17 years without an acceptable explanation, the common
law rule
that review proceedings should be initiated without undue delay has
been violated.
I am accordingly satisfied that the court
a quo in the exercise of its discretion correctly concluded that this
unreasonable
delay should not be condoned. The appeal on the merits
must accordingly fail.
[36]
For the above reasons, I make the following order.
1
The appeal against the costs order granted by the court a quo against
the appellant in favour of the third respondent is upheld.
2
The costs order granted by the court a quo against the appellant in
favour of the third respondent is set aside and substituted
with the
following:
‘
As
regards costs between the appellant and the third respondent, each
party should bear its own costs’.
3
The appeal against the dismissal of the review application is
dismissed.
4
The appellant is ordered to pay the first respondent’s costs
including costs of two counsel.
_______________________
J
B Z Shongwe
Acting
President of the Supreme Court of Appeal
Appearances
For
the Appellant:
K Pillay SC (with her M Sello and M Lekoane)
Instructed by:
Mvuzo Notyesi
Incorporated, Mthatha
Christo Dippenaar
Attorneys, Bloemfontein
For
the first Respondent:
V Maleka SC (with him T
Ngcukaitobi)
Instructed by:
Messrs Ledwaba
Mazwai, Pretoria
Kramer Wiehman
Joubert, Bloemfontein
For
the 3
rd
and 4
th
Respondent: V
Notshe SC (with him M Pangio)
Instructed by:
The State Attorney,
Bloemfontein
For
the 8
th
and 9
th
Respondent: S C
Makangoa
Instructed by:
Messrs Makangela
Mtungani Incorporated, Mthatha
Moroka Attorneys,
Bloemfontein