CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 121/20
In the matter between:
KHOSIKHULU TONI PETER MPHEPHU-RAMABULANA First Applicant
MPHEPHU-RAMABULANA ROYAL FAMILY COUNCIL Second Applicant
and
MASINDI CLEMENTINE MPHEPHU First Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Second Respondent
MINISTER OF COOPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS Third Respondent
PREMIER, LIMPOPO Fourth Respondent
NATIONAL HOUSE OF TRADITIONAL LEADERS Fifth Respondent
LIMPOPO HOUSE OF TRADITIONAL LEADERS Sixth Respondent
COMMISSION ON TRADITIONAL LEADERSHIP
DISPUTES AND CLAIMS Seventh Respondent
and
RAVHURA ROYAL KINGSHIP COUNCIL First Intervening Party
AMOS TSHENUWANI MUKAPU RAVHURA Second Intervening Party
Neutral citation: Mphephu-Ramabulana and Another v Mphephu and Others [2021]
ZACC 43
Coram: Khampepe J, Jafta J, Majiedt J, Mhlantla J, Pillay AJ, Theron J,
Tlaletsi AJ, and Tshiqi J.
Judgment: Khampepe J (unanimous)
Decided on: 12 November 2021
Summary: Traditional affairs — Leadership of Royal Family — Presidential
decision to recognise traditional leader
Traditional Leadership and Governance Framework Act —
Promotion of Administrative Justice Act
ORDER
On appeal from the Supreme Court of Appeal:
1. Condonation is refused in the main application.
2. The main application is dismissed.
3. Condonation is granted in the application for leave to cross-appeal.
4. Leave to cross-appeal is granted.
5. The cross-appeal is upheld to the extent set out in paragraphs 6 to 8 below.
6. Paragraph 1 of the order of the Supreme Court of Appeal is set aside and
replaced with the order that:
“The appeal is upheld, and the second respondent is ordered to pay the
costs of the applicant.”
7. Paragraph 3(e) of the order of the Supreme Court of Appeal is set aside
and replaced with the order that:
“The second respondent is ordered to pay the costs of the applicants.”
8. Paragraph 3(f) of the order of the Supreme Court of Appeal is set aside.
9. The second respondent is ordered to pay the costs of the first respondent
in this Court.
3
JUDGMENT
KHAMPEPE J ( Jafta J, Majiedt J, Mhlantla J , Pillay AJ, Theron J, Tlaletsi AJ, and
Tshiqi J concurring):
Introduction
[1] It is said that “heavy is the head that wears the crown” , and indeed it is so. For
the crown asks of one that his or her life, no matter how long or short it may be, be
dedicated to the service of his or her people. And so this matter c omes to this Court,
presenting as an entanglement of applications, at the centre of which lies the question:
on whose head should the Venḓa crown sit heavy? Who has the right to give his or her
life in service of the VhaVenḓa people?
[2] This matter consists of three sets of applications . The first is an application for
condonation and leave to appeal, in which the applicant s seek leave to appeal against
the judgment and order of the Supreme Court of Appeal (main application). The second
consists of applications for condonation, leave to cross-appeal and direct access to this
Court, in which the first respondent makes a number of counter-applications to the main
application (counter-applications). The third is an application for leave to intervene in
the main application (intervention application). I expand on these applications later.
Parties and factual background
[3] At the core of this matter lies a royal family dispute over the leadership of the
VhaVenḓa Community, in terms of the customary law and customs of the Vha Venḓa
people. The primary parties to the dispute are descendants of the Mphephu-Ramabulana
Royal Family (Royal Family), which is statutorily recognised as holding the sole claim
to Venḓa Kingship or Queenship (Throne).
KHAMPEPE J
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[4] The first applicant is Khosikhulu Mphephu -Ramabulana. In 2012,
Mr Mphephu-Ramabulana was, by notice in the Government Gazette (Recognition
Notice), recognised by the second res pondent, the President of the Republic of South
Africa, as the King of the VhaVenḓa Community (Recognition Decision). The
Recognition Decision was made, and the Recognition Notice purportedly issued, in
terms of the Traditional Leadership and Governance Framework Act1
(Framework Act). I should mention here that the original version of the Framework
Act was amended in 2009 , under the same title , by the Traditional Leadership and
Governance Framework Amendment Act2 (Framework Amendment Act).
[5] The second applicant is the Royal Family Council. It was pursuant to the
Royal Family Council’s decision of 14 August 2010 , to identify
Mr Mphephu-Ramabulana as a suitable person to ascend to the Throne
(Identification Decision), that the President made his Recognition Decision.
[6] The first respondent is Masindi Mphephu. She is a Princess of the Royal Family,
and asserts that she should be seated on the Throne, as the sole Queen of the VhaVenḓa
Community.
[7] The third and fourth respondents are the Minister of Cooperative Governance
and Traditional Affairs and the Premier, Limpopo. The fifth and sixth respondents are
the National House of Traditional Leaders and the Limpopo House of Traditional
Leaders (collectively, the Houses of Traditional Leaders). The seventh respondent is
the Commission on Traditional Leadership Disputes and Claims (Commission).
[8] In the intervention application, the applicants are the Ravhura Royal Kingship
Council and Amos Tshenuwani Mukapu Ravhura (Mr Ravhura).
1 41 of 2003.
2 23 of 2009.
KHAMPEPE J
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Litigation history
High Court
[9] In December 2012, Ms Mphephu, together with her uncle,
Mr Mbulaheni Mphephu, launched review proceedings in the High Court. She sought
various orders, most of which are irrelevant to the current proceedings before this Court,
and need not be set out in any detail. In essence, Ms Mphephu sought to have the Royal
Family Council’s Identification Decision, as well as the Pre sident’s subsequent
Recognition Decision, declared unlawful, unconstitut ional and invalid, and
consequently reviewed and set aside.
[10] Ms Mphephu also sought an order declaring that, in terms of customary law, she
is the sole Queen of VhaVenḓa, alternatively that her uncle, Mr Mphephu, is the sole
King.
[11] By agreement between the parties, the High Court was asked to determine
separately 14 points in limine (preliminary points raised at the beginning of the hearing),
which also need not be set out fully here. It is sufficient to say that the High Court
decided many of the points in limine against Ms Mphephu, the result being that it
dismissed her review application.3
[12] Aggrieved by the dismissal of her review application, Ms Mphephu brought an
application for leave to appeal, but the High Court dismissed that application as well.
Consequently, she approached the Supreme Court of Appeal, which granted her leave
to appeal.
Supreme Court of Appeal
[13] While the Supreme Court of Appeal upheld some of the High Court’s findings,
it also overturned the judgment of the High Court on a number o f the points in limine
3 Mphephu v Mphephu-Ramabulana [2017] ZALMPTHC 1.
KHAMPEPE J
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in substantial respects.4 First, the Supreme Court of Appeal found that the High Court
erred in holding that it lacked jurisdiction because the dispute ought to have been
referred to the Commission in terms of the Framework Amendment Act. The Supreme
Court of Appeal held that section 211 of the Constitution vests in the courts the authority
to adjudicate customary law disputes, and to apply customary law in appropriate cases,
which jurisdiction is not dependent on whether or not a person has lodged a claim with
the Commission.
[14] Second, the Supreme Court of Appeal held that the decisions of the State
respondents made in terms of the Framework Act were decisions of organs of State,
reviewable in terms of the Promotion of Administrative Justice Act5 (PAJA). It then
held that the President’s Recognition Decision was vitiated by a material error of law,
and fell to be reviewed and set aside in terms of section 6(2)(d) of PAJA. This was so
because, so held the Supreme Court of Appeal, in making the Recognition Decision and
publishing the Recognition Notice, the President erro neously relied on the
Framework Act, which did not require a ministerial recommendation for him to exercise
his power. However, the law in force at the time of the Ro yal Family Council’s
Identification Decision was the Framework Amendment Act, which required the
ministerial recommendation.
[15] Third, the Supreme Court of Appeal found that, while the Royal Family Council
is not an organ of State, its decisions in terms of the Framework Amendment Act initiate
a process of identification. This process then leads to an exercise of public power and
the performance of the public function of recognition on the part of the President or the
Premier, as the case may be, in terms of the Framework Amendment Act. The Royal
Family Council ’s decisions are thus an initial part of administrative action, which
become ripe for review after the relevant organ of State has taken its decision. The
Supreme Court of Appeal went on to hold that the Royal Family Council’s Identification
4 Mphephu v Mphephu-Ramabulana [2019] ZASCA 58; 2019 JDR 0753 (SCA).
5 1 of 2000.
KHAMPEPE J
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Decision was taken by an improperly constituted forum; therefore, it was not in
accordance with the law. This was so because certain persons who were present at the
meeting in which the Council took the decision were neither part of nor related to the
Royal Family and, in terms of the provisions of the Framework Amendment Act, were
not entitled to be in attendance. The Identification Decision therefore fell to be set aside
on a number of PAJA grounds, including that: the decision was taken under a delegation
of power that was not authorised by the empowering provision (section 6(2)(a)(ii)); a
mandatory material procedure prescribed by the empowering provision was not
complied with (section 6(2)(b)); and the decision was taken because of the unauthorised
dictates of another person (section 6(2)(e)(iv)).
[16] Fourth, the Supreme Court of Appeal held that the criteria applied by the
Royal Family Council in making the Identification Decision, as set out in the minutes
of the selection meeting, endorsed gender discrimination, in that it prescribed that “[i]n
the Mphephu-Ramabulana family in particular the Chief or King must come or must be
a man (sons)”. The Court declined to declare the criteria itself unconstitutional and
invalid, or to review and set it aside, on the basis that this Court’s decision in Shilubana
held that communities should be given an opportunity to develop their customs and
traditions so as to promote gender equality. 6 It held, h owever, that the
Identification Decision and the Recognition Decision fell to be reviewed and set aside,
because they were made in terms of criteria which had the effect of impeding
compliance with section 2A(4)(c) of the Framework Amendment Act, which imposes
an obligation on the Royal Family to devel op the criteria for the identification of a
suitable person for the Throne and bring that criteria in line with the Bill of Rights. The
Court found these to be relevant considerations which were not taken into account by
the President, the Minister and th e Royal Family Cou ncil, as is required by
section 6(2)(e)(iii) of PAJA.
6 Shilubana v Nwamitwa [2008] ZACC 9; 2009 (2) SA 66 (CC); 2008 (9) BCLR 914 (CC) at paras 73-4.
KHAMPEPE J
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[17] The Supreme Court of Appeal was only seized with the points in limine appealed
by Ms Mphephu, and no t the entire review application. It, however, noted that there
were factual disput es between the parties on the merits, which disputes required the
application of customary law and customs, and the adjudication of the matter could not
reach finality until they were resolved. The disputes included: first, the effect of
Ms Mphephu’s concession that she was born before her father ascended to the Throne,
and was thus not born to an incumbent leader, as allegedly required by Venḓa customs;
second, whether Ms Mphephu was born of a Dzekiso wife,7 and the effect of this on her
eligibility for Queenship; third, whether Ms Mphephu communicated her claim to the
Royal Family Council before approaching a court; a nd, fourth, whether
Mr Mphephu-Ramabulana was disqualified from ascending to the Throne on t he basis
of having been a Ndumi8 to Ms Mphephu’s father.
[18] Regarding the factual disputes on the merits, the Supreme Court of Appeal
reviewed and set aside both the Recognition Decision and the Identification Decision
on the bases set forth above, but then remitted the matter to the High Court for further
adjudication on the merits before a different Judge. It also ordered the President and
the Premier to refer certain issues of customary law and custom to the Houses of
Traditional Leaders for their advice and opinion, which is to be submitted to the High
Court in order to assist that Court in its adjudication of the merits.
[19] It should be noted at this juncture that, despite having reviewed and set aside
both the Recognition Decision and the Identification Decision, the Supreme Court of
Appeal held that it was premature to consider a just and equitable remedy before the
entire review was finalised. This was because, so the Court held, the outstanding issues
and points in limine remitted to the High Court had a direct bearing on any future
7 The Dzekiso wife is the wife of the traditional leader selected by the Royal Family to bear an heir to the throne.
8 Ndumi, in terms of Venḓa custom, is a male person appointed by the Royal F amily, along with the Chief, King
or Queen, as a ‘Regent apparent’, in a manner of speaking. Should the Chief, King or Queen be incapacitated or
pass on, or be unable to fulfil his or her duties for any reason, the Ndumi then becomes the Khosi Pfareli (Regent).
The Ndumi’s duties also include protecting and assisting the Chief, King or Queen. The person appointed as the
Ndumi is chosen from the fami ly and is not permitted, in terms of custom, to become the ruler, when the ruler
whom he served passes.
KHAMPEPE J
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identification and recognition of a person to ascend to the Venḓa Throne, even in an
acting capacity. Thus, the appointment of anyone to the Throne would require a prior
determination of the very same issues which fell to be decided by the High Court. The
Supreme Court of Appeal therefore ordered that the effect of the review and setting
aside of Mr Mphephu-Ramabulana’s recognition as the King of VhaVenḓa, and the
withdrawal of his certificate of recognition as King, be sta yed pending the final
determination of these issues (stay order).
[20] It is also significant to note here that, although it upheld Ms Mphephu’s appeal,
the Supreme Court of Appeal made no order as to costs in the appeal, and ordered that
costs in the High Court be costs in the cause (costs order).
Main application in this Court
[21] In the main application, the applicants request this Court to overturn the decision
of the Supreme Court of Appeal. I briefly set out the parties’ submissions made in the
main application.
Applicants’ submissions
[22] As a point of departure, it behoves me to mention that the main application was
filed appreciably out of time. The Supreme Court of Appeal handed down its judgment
on 12 April 2019, and the application for leave to appeal to this Court was only launched
on 6 July 2020, that is more than a year after the date of filing in terms of this Court ’s
Rules. The applicants were therefore compelled to apply for condonation, which they
did – albeit on several grounds that are difficult to follow.
[23] In essence, the applicants say that they had to wait for the reports of the
Houses of Traditional Leaders ordered by the Supreme Court of Appeal before deciding
whether to appeal, and those reports were only filed on 6 November 2019. They also
say that , thereafter, they were hamstrung because their legal representatives were
KHAMPEPE J
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engaged in attempts to arrange suitable dates for a pre -trial conference ahead of the
hearing on the merits in the High Court.
[24] The applicants further assert that the l ockdown due to the Covid-19 pandemic,
and their legal representatives’ inability to access their Chambers from 23 March 2020,
prevented them from launching the application timeously. The lateness of the
application notwithstanding, the applicants aver that the issu es which the application
raises are of great constitutional importance , and there are good prospects of success,
which should lead this Court to grant condonation.
[25] On the merits, t he applicants take issue with the S upreme Court of Appeal’s
judgment on the basis that that Court erred in a number respects. The applicants claim
that, firstly, having found that Ms Mphephu’s claim in terms of the
Framework Amendment Act and PAJA had prescribed, the Court erred in referring the
matter back to the High Court for determination on the merits; secondly, that the Court
dealt with issues that were not before it, and ordered relief not sought by the parties;
thirdly, the Court erred in ordering the Houses of Traditional Leaders to furnish an
opinion to the High Court, which is outside of their mandate and on issues which the
High Court must itself determine; fourthly, the Court’s remittal of the matter to the High
Court is a futile exercise; and the Court erred in remitting the matter to the High Court
in any event, because the identification of the heir to the Throne can only be done by
the Royal Family and not by a court.
Ms Mphephu’s submissions
[26] Because her applications are also out of time, Ms Mphephu seeks condonation
for her late filing on a number of grounds. Firstly, she avers that her applications have
been prompted by the applicants’ delay and obstruction of the finalisation of her review
application, of which their application to this Court is a clear instance. She states that,
when the time for appealing the Supreme Court of Appeal’s order had come and gone,
she had trusted that the parties would finalise the review application in good faith, as
expeditiously as possible and in the interests of the VhaVenḓa people and justice.
KHAMPEPE J
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[27] Secondly, Ms Mphephu argues that, although she was aware of the Supreme
Court of Appeal’s errors at the time, she decided to use her limited resources, given that
she is represented by Legal Aid, to finalise the review application. Ms Mphephu argues
that she did not a nticipate that the applicants would launch obstructive litigation to
further frustrate the finalisation of the review application.
[28] Regarding the main application, Ms Mphephu opposes it on several grounds. In
the first instance, she argues that condonation should be refused because the application
comes almost 15 months out of time and on the eve of the set down of the matter for
oral evidence on the merits in the High Court. Ms Mphephu submits that the application
is an attempt to obstruct the set down of the matter and delay its final resolution, which
has already been delayed by some eight years. She sets out a detailed chronology which
she says shows extensive delays on the part of the applicants in their attempt to prejudice
her and the VhaVenḓa Community in the finalisation of this matter. For these reasons,
Ms Mphephu submits that this Court should make a punitive costs order against the
applicants.
[29] Furthermore, Ms Mphephu disputes that the applicants were entitled to wait for
the opinion of the Houses of Traditional Leaders. She submits that, if anything, what
is clear is that this application is being launched only because, as it turns out, the reports
of the Houses do n ot favour Mr Mphephu-Ramabulana, and not because of genuine
concern about the correctness of the S upreme Court of Appeal’s judgment and order.
Ms Mphephu submits that, in any event, the applicants have known of the reports of the
Houses of Traditional Leaders since November 2019, and no explanation for the delay
since that date has been proffered.
[30] On the merits, Ms Mphephu points out that the Supreme Court of Appeal decided
only the points in limine that were on appeal and not her ultimate claim to the Th rone,
which it rightly remitted to the High Court. She submits that the Supreme Court of
Appeal’s decision in this regard should be upheld. Ms Mphephu also submits that the
KHAMPEPE J
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Supreme Court of Appeal was entitled to order the President and the Premier to re fer
questions of customary law to the Houses of Traditional Leaders, because the provisions
of section 212(2) of the Constitution and sections 9(3)(a) and 11(3)(a) and Chapter 4 of
the Framework Act make clear that the Houses are established as the bodies with
expertise on matters of customary law and traditional leadership. She submits that
nothing in those provisions precluded the Supreme Court of Appeal’s order.
[31] This Court has decided to determi ne the main application on the pleadings,
without any further submissions or oral argument. The decision on the main application
follows.
This Court’s decision on the main application
[32] It is necessary to begin by deciding the issue of condonation. After all, the main
application can only be entertained by this Court if condonation is granted for its late
filing.
[33] It is perspicuous that compliance with this Court’s Rules and timelines is not
optional, and that condonation for any non -compliance is not at hand merely for the
asking. The question in each case is “ whether the interests of justice permit ” that
condonation be granted. 9 Factors such as the extent and cause of the delay ,10 the
reasonableness of the explanation for the delay ,11 the effect of the d elay on the
administration of justice and other litigants,12 and the prospects of success on the merits
if condonation is granted, 13 are relevant to determining what the interests of justice
dictate in any given case.
9 Mankayi v AngloGold Ashanti Ltd [2011] ZACC 3; 2011 (3) SA 237 (CC); 2011 (5) BCLR 453 (CC) at para 8.
10 Brummer v Gorfil Brothers Investments (Pty) Ltd [2000] ZACC 3; 2000 (2) SA 837 (CC); 2000 (5) BCLR 465
(CC) at para 3.
11 Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) [2007] ZACC 24; 2008 (2)
SA 472 (CC); 2008 (4) BCLR 442 (CC) at para 20.
12 Id and Brummer above n 10 at para 3.
13 Mankayi above n 9 at para 8.
KHAMPEPE J
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[34] In casu, we are faced with a delay of over a year, which is evidently inordinate,
and not justified by cogent reasons. I find myself compelled to take a dim view of the
applicants’ explanation that they had to wait for the reports of the
Houses of Traditional Leaders in order to decide whether to appeal. It is not open to
applicants simply to disregard this Court’s Rules because they are mulling over whether
or not to appeal. It is also plain from the grounds of appeal advanced that the Houses’
reports bore little relevance to the applicants’ decision to appe al. This was hardly
surprising given that the part of the Supreme Court of Appeal’s order relating to the
Houses was made against the President and the Premier, and not the applicants. It is
difficult, then, to discern of what relevance the contents of the reports are to the main
application.
[35] Indeed, the only gripe the applicants have with the relief ordered by the
Supreme Court of Appeal in relation to the Houses is that the order to provide an
opinion falls outside of their mandate. But this ground of appeal was not contingent on
the contents of the Houses’ reports, and could have been advanced without first waiting
to peruse the reports. In the absence of a plausible explan ation, it appears to me that
Ms Mphephu is correct in claimin g that the applicants’ waiting game was probably
propelled by hope that the Houses’ reports would favour the applicants, and a belated
decision to appeal was taken when this did not materialise. Far from being a reasonable
explanation for the delay, this purported explanation by the applicants borders on abuse
of court processes.
[36] Moreover, as Ms Mphephu points out, the applicants have known of the Houses’
reports since November 2019. No reasonable explanation has been provided as to why
the applicants failed to launch proceedings immediately thereafter. The best excuse the
applicants could provide was that t heir legal representatives were hamstrung by the
apparently taxing logistics of arranging suitable dates for a pre -trial conference ahead
of the hear ing o n the merits in the High Court . Does sending a collection of
correspondence for a pre-trial conference constitute so heavy a burden as to prevent the
KHAMPEPE J
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launching of an allegedly important application for leave to appeal to the country’s
apex court? The flimsiness of this excuse need only be stated to be seen.
[37] There was, as a last -ditch effort to rescue the applicants’ plea for condonation,
an attempt to rely on the Covid-19 pandemic and the e nsuing lockdown from late
March 2020. While the pandemic, together with its attendant lockdowns, has no doubt
been responsible for legitimate delays in many contexts, this Court will still closely
scrutinise any purported reliance on the pandemic to justify failure to comply with its
rules. It is for this Court t o determine for itself whether or not the pandemic offers a
reasonable explanation for the delay in a given case. I am afraid that in this case, it does
not. As the applicants themselves acknowledge, it is only the period from late
March 2020 until July 2020, when they launched their application, which could have
been affected by the pandemic. The pandemic, therefore, cannot justify the delay since
the Supreme Court of Appeal handed down its judgment in April 2019 . In truth, it
seems to me that the appl icants’ use of the pandemic as an opportunistic crutch to
explain their delay was really the final flogging of an otherwise dead horse. No
reasonable explanation has been put forward for the excessive delay, and this is a strong
indicator that the application for condonation must fail.
[38] While I am of the view that the extremity of the delay, coupled with the paucity
of the explanation provided, justify the immediate refusal of condonation, I am mindful
that this Court has said that lateness and inadequacy of the explanation provided are not
necessarily dispositive of the question of condonation. 14 This is because the other
factors relevant to condonation may favour its granting and tilt the interests of justice
to the other side of the scale. If anything, however, the other factors in this case bring
the scale flat to the ground on the side of refusing condonat ion. Entertaining the main
application at this stage, when the review application is due to be finalised in the
14 Bertie Van Zyl (Pty) Ltd v Minister for Safety and Security [2009] ZACC 11; 2010 (2) SA 181 (CC); 2009 (10)
BCLR 978 (CC) at paras 13-4. See also S v Ndlovu [2017] ZACC 19; 2017 (2) SACR 305 (CC); 2017 (10) BCLR
1286 (CC) at para 32.
KHAMPEPE J
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High Court, would be highly prejudicial to the finalisation of the dispute between the
parties, and would be a fundamental hindrance to the administration of justice.
[39] Moreover, and in any event, the main application lacks prospects of success. The
bedrock of the applicants’ case is that the Supreme Court of Appeal ought not to have
upheld the appeal after finding that Ms Mphephu’s claim had prescribed. But this is a
fundamental and seemingly opportunistic misreading of the Supreme Court of Appeal’s
judgment. The Supreme Court of Appeal only found that Ms Mphephu’s claim in terms
of certain sections of the Framework Amendment Act had prescribed. But this was not
dispositive of Ms Mphephu’s claims in terms of other provisions, and certainly did not
prevent a review in terms of PAJA. To put it bluntly, the grounds of appeal advanced
are in many ways flimsy and unconvincing, and do not even attempt to unseat the PAJA
grounds of review on which the Supreme Court of Appeal reviewed and set aside the
Identification Decision and the Recognition Decision. The result is that those grounds
of review remain unchallenged, and the appeal would have no prospects of succeeding
if entertained. Ergo, when all the relevant factors are considered, there can be no
question about where the interests o f justice lie in this case: condonation must be
refused.
[40] Having refused condonation, the main application is not before this Court for
determination and is dismissed on that basis.
This Court’s decision on the intervention application
[41] Given the decision that this Court has reached on the main application, it is
unnecessary to delve into the merits of the intervention application. This is so because
the intervening applicants applied specifically to make submissions in the main
application. Their main co ntention was that they have a direct and substantial interest
in this matter because, so they claim, neither Mr Mphephu -Ramabulana nor
Ms Mphephu are entitled to ascend to the Throne. This is apparently because the second
intervening applicant, Mr Ravhura, is in fact the rightful heir to the Throne.
KHAMPEPE J
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[42] The submissions which the intervening applicants sought to make were
contingent on this Court adjudicating the merits of the main application and finally
deciding the rightful heir to the Throne. These are not issues we reach and, as a result,
the intervention application does not arise for determination.
Ms Mphephu’s counter-applications
[43] I mentioned earlier that Ms Mphephu launched several counter -applications in
response to the main application, including an application for condonation, for leave to
cross-appeal, and for direct access to this Court.
[44] Once again, it is necessary to begin by disposing of the application for
condonation. Cognisant of the fact that Ms Mphe pu’s applications are, like the
applicants’, considerably late, I wondered at length whether her applications should not
similarly be dismissed given the lengthy delay. However, this Court has, on a number
of occasions, said that the length of the period of the delay is not the only consideration
in determining whether condonation should be granted. As I have already explained,
the central question in a condonation enquiry is whether it is in the interests of justice
to grant condonation.15
[45] In the case of Ms Mphephu, the aspects of her applications which are conditional
on the Court granting leave to appeal in the main application fall away because leave in
the main application is refused. However, those aspects of her applications that are
unconditional are more complex and provide much foo d for thought, both on
condonation and leave to appeal.
[46] There are some prospects of success apropos to Ms Mphephu’s two
unconditional applications. It strikes me that the Supreme Court of Appeal applied rules
15 See the discussion at [33] which is supported by a number of this Court’s decisions, including: Mankayi above
n 9 at para 8; Van Wyk above n 11 at para 20; S v Mercer [2003] ZACC 22 ; 2004 (2) SA 598 (CC); 2004 (2)
BCLR 109 (CC) at para 4 ; Head of Department, Department of Education, Limpopo Province v Settlers
Agricultural High School [2003] ZACC 15; 2005 JDR 1227 (CC); 2003 (11) BCLR 1212 (CC) at para 11; and
Brummer above n 10 at para 3.
KHAMPEPE J
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of costs that ordinarily apply to regular lit igants on appeal despite having conducted a
PAJA review of the administrative action of organs of State. This is especially so since
Ms Mphephu argues that the Supreme Court of Appeal’s attention was drawn to the
Biowatch principle,16 which was ignored. Given that Ms Mphephu’s challenge was in
vindication of her constitutional rights, that she enjoyed substantial success in
vindicating them, and in the light of the silence of the Supreme Court of Appeal’s
judgment on the applicability of Biowatch, there are strong prospects of success on these
particular points. As a result, condonation is granted to Ms Mphephu.
[47] As regards the substance of the cross -appeal, the first set of Ms Mphephu’s
applications were conditional applications for direct access and leave to cross -appeal
against various aspects of the judgment and order of the Supreme Court of Appeal. The
condition in these applications was that they were brought only if this Court was
inclined to set down the main application for oral hearing, or ot herwise to grant the
relief sought in that application.
[48] The second was an unconditional application for leave to cross -appeal the
Supreme Court of Appeal’s costs orders. The third set consisted of what Ms Mphephu
referred to as an application for a disch arge of the Supreme Court of Appeal’s stay
order, on the strength of what was alleged to be this Court’s wide remedial powers in
terms of sections 172 and 173 of the Constitution to discharge interlocutory orders.
[49] On 24 February 2021 , this Court issued di rections calling on the parties to file
written submissions on: the Supreme Court of Appeal’s stay order; the Supreme Court
of Appeal ’s costs order; and Ms Mphephu’s request for punitive costs against the
applicants in this Court. I briefly set out the submissions filed by the parties on each of
these issues in what follows.
16 The Biowatch principle p rovides that where individuals litigate against the State in order to vindicate
constitutional rights and are successful, they are entitled to a costs award. See Biowatch Trust v Registrar, Genetic
Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC).
KHAMPEPE J
18
Parties’ submissions on the Supreme Court of Appeal’s stay order
Ms Mphephu
[50] Ms Mphephu submits that the Supreme Court of Appeal ’s stay order must be
discharged or set aside on two related grounds. In the first instance, Ms Mphephu says
that the stay order is not just and equitable. Additionally, she argues that the stay order
was granted unfairly and without affording her, as the person who is prejudiced by the
order, an opportunit y to be heard on its appropriateness . She says that the stay order
was not sought by either of the parties and was thus not properly considered by the
Supreme Court of Appeal.
[51] Ms Mphephu submits that the stay order is prejudicing her and the Venḓa nation
in the ongoing review proceedings because it provides an incentive for
Mr Mphephu-Ramabulana to delay the finalisation of the matter while enjoying the
benefits of the Throne. Additionally, it subjects the Venḓa nation to the indefinite rule
of an unlawfully appointed and publicly compromised King. For as long as his
application to this Court (and any other litigation he may launch in the future) is
pending, Mr Mphephu-Ramabulana is protected in his unlawful Kingship. She says
that it is unjust t hat the stay order keeps Mr Mphephu-Ramabulana’s Kingship intact
and enables him to enjoy access to considerable resources which, in turn, enable him to
engage in protracted litigation, despite the Supreme Court of Appeal having found his
appointment to be unlawful. The injustice is exacerbated by the Supreme Court of
Appeal’s finding that rendered him without any legal entitlement to the se resources.
Ms Mphephu submits that she is unable to counter this litigation because she has no
funds and is represented by Legal Aid.
[52] According to Ms Mphephu, it is not clear whether, in making the stay order, the
Supreme Court of Appeal purported to exercise its remedial discretion in terms of
section 172(1)(b) of the Constitution, or its power to regulate its own processes under
section 173. She submits that, either way, she ought to have been granted a hearing
before the order was issued, and the failure to do so was a procedural irregularity which
KHAMPEPE J
19
impaired her right to just administrative action in terms of section 33 of the Constitution
and PAJA, and of access to courts under section 34 of the Constitution. She avers that
at the core of both sections 172(1)(b) and 173 is the principle of fairness, which
prohibits courts from granting orders that are prejudicial, and without he aring the
prejudiced party. Ms Mphephu submits that this Court has the power to set aside or
discharge the stay order in terms of its broad reme dial power outlined in
sections 172(1)(b) or 173 of the Constitution.
The applicants
[53] Instead of limiting their written submissions to the issues directed by this Court,
the applicants dedicated half of their submissions to arguments on why the main
application should succeed. In essence, it was argued that the Supreme Court of Appeal
should have dismissed Ms Mphephu’s appeal when upholding the High Court’s finding
that, insofar as lodging a claim or declaring a dispute with the Commission in terms of
the Framework Amendment Act is concerned, Ms Mphephu’s claim had prescribed.
[54] In relation to the stay order, the applicants withdraw the averment made in their
pleadings that the order was in the interests of justice. They now maintain that they
agree with Ms Mphephu that the Supreme Court of Appeal erred in making the stay
order, and in doing so without hearing the parties on the order. They argue that, having
found the judgment of the High Court to be correct on the prescription point, the
withdrawal of Mr Mphephu -Ramabulana’s recognition certificate was not an issue on
appeal. The applicants assert that this is a ground to overturn the entire judgment of the
Supreme Court of Appeal.
The State respondents
[55] The State respondents, being the President, the Minister and the Commission,
filed written submissions in which they indicate that they a bide by the decision of this
Court, and file d the submissions only in compliance with this Court’s directives. On
the stay order, the State respondents argue that it is plain from the Court’s statement
KHAMPEPE J
20
that it was premature to consider the question of a just and equitable remedy before the
entire review application was finalised. And, that the Supreme Court of Appeal
refrained from exercising its powers in terms of section 172(1)(b) of the Constitution,
and instead exercised its powers in terms of section 173. This being the case, the State
respondents submit that it was not necessary for the Supreme Court of Appeal to hear
the parties on the stay order. Their position is that the Supreme Court of Appeal was
well aware that, because there were outstandin g issues which required adjudication by
the High Court, it could not grant final relief in the matter.
[56] Furthermore, the State respondents assert that the stay order does not prejudice
Ms Mphephu, as it does not follow from the Supreme Court of Appeal’s invalidation of
Mr Mphephu-Ramabulana’s recognition and appointment that Ms Mphephu would
automatically be recognised as Queen of VhaVenḓa. While the State respondents admit
that it is concerning that Mr Mphephu -Ramabulana continues to act as King of
VhaVenḓa despite his appointment having been declared unlawful, unconstitutional and
invalid, they aver that the stay order appears not unlike a declaration of invalidity that
is suspended by this Court from t ime to time in terms of section 172(1)(b)(ii) of the
Constitution.
Parties’ submissions on costs
Ms Mphephu
[57] On the Supreme Court of Appeal’ s costs order, Ms Mphephu argues that the
Court erred , because she was entitled to costs in both the High Court and the
Supreme Court of Appeal in view of her substanti al and final success on the points
in limine. She relies on this Court’s decision in Baloyi,17 which shows, so she submits,
that even where the balance of issues is remitted to the court a quo, an appellant ’s
success entitles them to costs. Ms Mphephu also submits that since her review
application against the State seeks to enforce and vindicate constitutional rights, the
17 Baloyi v Public Protector [2020] ZACC 27; (2021) 42 ILJ 961 (CC); 2021 (2) BCLR 101 (CC).
KHAMPEPE J
21
Biowatch principle dictates that she ought to have been awarded costs in both the High
Court and in the Supreme Court of Appeal.18
[58] Ms Mphephu also seeks punitive costs against the applicants in this Court on the
basis that they obstructed the administration of justice by significantly and purposefully
delaying the final resolution of the matter. Ms Mphephu alleges that
Mr Mphephu-Ramabulana’s conduct is worthy of this Court’s rebuke through punitive
costs, for he lied on oath in his opposing affidavit to the applicant’s counter-applications
in this Court about the current criminal proceedings he faces as a result of alleged
involvement in unlawful VBS Mutual Bank activities.
The applicants
[59] The applicants’ submissions on the Supreme Court of Appeal ’s costs order
depend, to a great extent, on their submission that that Court erred in upholding the
appeal. On costs in the High Court, the applicants maintain that this issue was entirely
within that Court’s discretion. They further assert that the High Court’s exercise of its
discretion not to award costs should not be interfered with , given that the issues in this
matter affect the VhaVenḓa people rather than the parties. Finally, on Ms Mphephu’s
request for punitive costs in the proceedings before this Court, the applicants aver that
their application raises genuine constitutional issues of great importance to the
VhaVenḓa people, and that there is nothing in the way they have conducted themselves
in this Court which justifies its opprobrium through a punitive costs order.
The State respondents
[60] The State respondents submit that, given their decision to abide by the decision
of this Court, the question of costs in the appeal is a matte r between the applicants and
Ms Mphephu. Accordingly, they make no submissions on the issue of punitive costs,
save to state that there is no basis for any costs order against them in view of their
decision to abide.
18 Biowatch above n 16.
KHAMPEPE J
22
This Court’s decisions on Ms Mphephu’s counter-applications
[61] This Court has decided to determine Ms Mphephu’s counter-applications on the
basis of the pleadings and the written submissions filed in response to its direction s,
without an oral hearing. Our decisions on each of the counter -applications are set out
in what follows.
[62] In view of our decision to refuse condonation and d ismiss the main application,
Ms Mphephu’s conditional applications fall away and do not arise for determination.
These applications were conditional on this Court setting down that application for
hearing, or being inclined to grant the relief sought therein.
[63] What remains is the class of unconditional counter-applications relating to the
Supreme Court of Appeal ’s stay and costs orders. It is trite that for this Court to
entertain these applications they must engage this Court’s jurisdiction, and it must be in
the interests of justice to entertain them. In my view, t here is no doubt that these
pre-conditions are met. None of the parties argue that the unconditional
counter-applications do not engage this Court’s jurisdiction. Rightly so. At the core of
the dispute between the parties in relation to the stay order lies the question of whether
the order constitutes just and equitable relief, pursuant to the Supreme Court of Appeal’s
review of the Identification Decision and the Recognition D ecision. It is trite that the
review and exercise of public power by courts always raises a constitutional issue, and
therefore engages this Court ’s jurisdiction. 19 Moreover, this matter calls upon this
Court to evaluate the Supreme Court of Appeal ’s appr oach to the consequences of
unconstitutional and invalid administrative action and implicates the power in
section 172(1) of the Constitution. These are constitutional issues falling squarely
within this Court’s jurisdiction.
19 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism [2004] ZACC 15; 2004 (4) SA
490 (CC); 2004 (7) BCLR 687 (CC) at para 22.
KHAMPEPE J
23
[64] The challenge to the costs order of the Supreme Court of Appeal similarly
engages this Court ’s jurisdiction, it being settled that “[t]he award of costs in a
constitutional matter itself raises a constitutional issue and therefore this Court has
jurisdiction to hear it ”.20 As will be clear from my exposition below, Ms Mphephu ’s
unconditional counter -applications also bear prospects of success, and it is in the
interests of justice to entertain them. In what follows, I set out each of this Court’s
decisions on the merits of the unconditional counter-applications in turn.
The challenge to the Supreme Court of Appeal’s stay order
[65] My point of departure on this issue is the Constitution. The consequences of a
court finding that an administrative act is unlawful and unconstitutional, as the Supreme
Court of Appeal did in respect of the Identification Decision and the Recognition
Decision, are dictated by the Constitution itself. Section 172(1)(a) of the Constitution
prescribes that such an administrative act must be declared invalid. As this Court noted
in Doctors for Life International, albeit in the context of unconstitutional legislation, a
court which has found conduct to be unconstitu tional enjoys no discretion, and must
declare it invalid.21 This stringent injunction “gives expression to the supremacy of the
Constitution and the rule of law”,22 which are entrenched in the Constitution.23 It is for
this reason that I must, at this earliest available opportunity, reject the contention by the
State respondents that, in making the stay order, the Supreme Court of Appeal exercised
not the remedial power in section 172(1) of the Constitution, but the power to regulate
its own processes in section 173.
[66] Let me make this clear: section 172(1) is the primary constitutional memorial of
a court ’s remedial powers in constitutional matters . The section fully sets out the
parameters of what a court can and should do pursuant to a declaration that law or
20 Biowatch above n 16 at para 10.
21 Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC) ;
2006 (12) BCLR 1399 (CC) at para 201.
22 Id.
23 The supremacy of the Constitution is entrenched in section 2, while the rule of law is a foundational value set
out in section 1(c).
KHAMPEPE J
24
conduct, which includes administrative action, is unconstitutional. It is not an option
available to a court to evade the consequences of a finding of unconstitutionality by
purporting to exercise the po wer to regulate its own processes in section 173. That
construction is untenable, and would allow courts to use the seemi ngly cosmic facility
of section 173 to relieve themselves of that which the Constitution prescribes. The
section 173 power is not boundless in the sense of what the Supreme Court of Appeal
would have it be in this instance.
[67] The principle of legality, which is an incident of the rule of law,24 is central to a
court’s power when dealing with unconstitutional, and therefore invalid, administrative
action. It is now settled that, as a default position, “[t]he principle of legality [requires]
that an invalid administrative decision be set aside ”.25 This is to honour the
constitutional command that the Constitution must reign supreme and the law must rule.
While the Constitution recognises that the full might of setting aside unconstitutional
conduct may sometimes produce unjust a nd inequitable results, section 172(1)(b)
affords a court the discretion to make any order that is just and equitable. This may
include an order limiting the retrospective effect of the declaration of invalidity,26 and/or
suspending the declaration of invalidity.27
[68] I pause here to note that, notwithstanding the broad nature of the remedial
discretion in section 172(1)(b), a court is not at large, on the strength of its own peculiar
sensibilities and untrammelled notions of justice, to evade the constitutional imperative
that unconstitutional conduct must be invalidated and thus be of no force or effect. That
would be inimical to the principle of legality, and the supremacy of the Constitution.
As this Court said in Bengwenyama:
24 Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the Republic of South Africa
[2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para 17.
25 Eskom Holdings Ltd v New Reclamation Group (Pty) Ltd [2009] ZASCA 8; 2009 (4) SA 628 (SCA) at para 9.
26 Section 172(1)(b)(i) of the Constitution.
27 Section 172(1)(b)(ii) of the Constitution.
KHAMPEPE J
25
“It would be conducive to clarity, when making the choice of a j ust and equitable
remedy in terms of PAJA, to emphasise the fundamental constitutional importance of
the principle of legality, which requires invalid administrative action to be declared
unlawful. This would make it clear that the discretionary choice of a further just and
equitable remedy follows upon that fundamental finding. The discretionary choice may
not precede the finding of invalidity. The discipline of this approach will enable courts
to consider whether relief which does not give full effect to the finding of invalidity, is
justified in the particular circumstances of the case before it . Normally this would
arise in the context of third parties having altered their position on the basis that the
administrative action was valid and would suffer prejudice if the administrative action
is set aside, but even then the ‘desirability of certainty’ needs to be justified against the
fundamental importance of the principle of legality.”28 (Emphasis added.)
[69] It is therefore perspicuous that, as a default position, a court must give full effect
to its finding of invalidity and, where it exercises its remedial discretion not to do so in
terms of section 172(1)(b), must carefully consider whether this is justified in the
particular circumstances of the case . This is firmly in line with this Court ’s approach
to orders limiting the retrospective effect of declarations of invalidity in the context of
legislation, where the default position is the full might of retrospectivity. 29 Similarly,
the default position in relation to the suspension of orders declaring invalidity is that the
declaration of invalidity is immediate, unless a proper case for suspension has been
made out,30 and/or the suspension has a clear purpose.31
[70] In my view, it is unsurprising that the Constitution places so high a price on
ensuring that, as a general rule, declarations of invalidity are given full effect where
conduct is unconstitutional. Quite apart from giving expression to the principle of
legality, and the supremacy of the Constitution , giving full effect to the consequences
28 Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd [2010] ZACC 26; 2011 (4) SA 113 (CC);
2011 (3) BCLR 229 (CC) (Bengwenyama) at para 84.
29 Cross-Border Road Transport Agency v Central African Road Services (Pty) Ltd [2015] ZACC 12; 2015 (5)
SA 370 (CC); 2015 (7) BCLR 761 (CC) at para 20.
30 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17; 2000 (2) SA 1
(CC); 2000 (1) BCLR 39 (CC) at para 89.
31 My Vote Counts NPC v Minister of Justice and Correctional Services [2018] ZACC 17; 2018 (5) SA 380 (CC);
2018 (8) BCLR 893 (CC) at para 89.
KHAMPEPE J
26
of invalidity is often closely linked to the vindication of the rights of those affected by
the unconstitutional conduct. In the context of administrative action, this must be seen
in the light of the right to lawful, reasonable and procedurally fair administrative action,
as enunciated in section 33 of the Constitution, and the need to afford appropriate relief
to those whose administrative justice rights have been breached.32 In Steenkamp N.O.,
this Court expressed the purpose of remedies in this context to be—
“[t]o afford the p rejudiced party administrative justice, to advance efficient and
effective public administration compelled by constitutional precepts and at a broader
level, to entrench the rule of law.”33
[71] It seems to me that the Supreme Court of Appeal ’s stay order serve s neither of
these purposes , and is not a just and equitable order as contemplated in
section 172(1)(b). In fact, it is not immediately clear what the purpose of the stay order
is, as the order seems to be completely out of sync and incompatible with the rest of the
orders made by the Court . It appears highly paradoxical for the Court to say that the
Identification Decision and the Recognition Decision are “unlawful, unconstitutional
and invalid” and are “reviewed and set aside ”, on the one hand, but then to go on and
say that the effect of the review and setting aside , and the withdrawal of
Mr Mphephu-Ramabulana’s recognition certificate, are “stayed”, on the other hand. In
administrative law terms, “setting aside” generally implies the complete quashing of the
administrative act in question, and suggests that the full consequences of the declaration
of invalidity are in motion . Yet, this is the precise result that the stay order appears
designed to prevent.
[72] The stay order is all the more puzzling becau se it is hard to imagine any
consequence but a setting aside in this case. In the light of the Supreme Court of
Appeal’s emphatic orders declaring the Identification Decision and the Recognition
Decision “unlawful, unconstitutional and invalid ”, very weighty reasons would have
32 Steenkamp N.O. v Provincial Tender Board, Eastern Cape [2006] ZACC 16; 2007 (3) SA 121 (CC); 2007 (3)
BCLR 300 (CC) at para 29.
33 Id.
KHAMPEPE J
27
had to be advanced to avert the def ault remedy of setting aside. Yet, n o such reasons
were provided. All the Court said was that it would be premature to consider a just and
equitable remedy in view of the pending issues to be decided by the High Court, and
the fact that the appointment of anyone to the Throne required those issues to be finally
resolved first. I must say that I have difficulty following this reasoning.
[73] Determining a just and equitable remedy did not ne cessarily bear any
relationship to the appointment of anyone to the Throne , or the determination by the
High Court of the outstanding issues. The findings and orders of the Supreme Court of
Appeal declaring the Identification Decision and the Recognition Decision invalid are
final and binding, and nothing the High Court will say can change that. The
appropriateness of appointing anyone to the Throne or the final determination of the
outstanding issues could perhaps have been relevant if the Supreme Court of Appeal
had been minded to order the remedy of substitution, and to appoint Ms Mphephu to
the Throne. It was irrelevant to the full range of remedies available to the Court, some
of which are set out in section 8 of PAJA. For example, applying the remedy of setting
aside the impugned administrative action did not hinge on the appropriateness of
appointing anyone to the Throne, or the determination by the High Court of the
outstanding issues. The reasons given by the Court, therefore, bear no relationship to
the remedy ordered, and this signals that the stay order cannot be sustained.
[74] Furthermore, the stay order neither affords Ms Mphephu administrative justice
nor does it vindicate the rule of law. The stay granted by the Supreme Court of Appeal
is operative until the completion of the review proceedings, including any appeal which
may arise therefrom. It could be years before the review proceedings are finally settled,
in addition to the period of more than eight years which has already passed sinc e
Ms Mphephu first approached the courts. This is evidently prejudicial to Ms Mphephu.
It also means that Mr Mphephu-Ramabulana will continue to unlawfully occupy the
Throne in circumstances where his appointment has been found to have been
unconstitutional and invalid. This categorically offends the rule of law and the
supremacy of the Constitution.
KHAMPEPE J
28
[75] The peculiar aspect of this matter is that the applicants also agree that the stay
order is to be set aside, and have proffered no reasons why it is a just and equitable
remedy. Given my finding that the reasons provided by the Supreme Court of Appeal
also do not hold, I am left with an order in respect of which no one can advance reasons
as to why it is a just and equitable remedy. To uphold the order without reasons would
be contrary to the constitutional imperative to give full effect to orders of constitutional
invalidity unless there are reasons that dictate otherwise. Accordingly, I can find no
reason why this Court should not set aside the stay orde r, and that is the order I am
compelled to make.
The Supreme Court of Appeal’s costs order
[76] Costs in constitutional matters are governed by the prin ciples elucidated in this
Court’s decision in Biowatch. In that case, this Court held that:
“In litigation between the government and a private party seeking to assert a
constitutional right, Affordable Medicines established the principle that ordinarily, if
the government loses, it should pay the costs of the other side, and if the government
wins, each party should bear its own costs.
. . .
If there should be a genuine, non -frivolous challenge to the constitutionality of a law
or of State conduct, it is appropriate that the State should bear the costs if the challenge
is good.”34
[77] A private litigant need not succeed in each and every aspect of their case in order
for the Affordable Medicines 35 principle, reiterated in Biowatch, to apply. What is
required is substantial success. As this Court explained, “particularly powerful reasons
34 Biowatch above n 16 at paras 22-3.
35 Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529
(CC) (Affordable Medicines).
KHAMPEPE J
29
must exist for a court not to award costs against the [S]tate in favour of a private litigant
who achieves substantial success in proceedings brought against it”.36
[78] This matter, being one in which Ms Mphephu sought to vindicate her
constitutional rights, falls squarely within the contours of Biowatch. It is plain from the
judgment of the Supreme Court of Appeal that it decided the majority of the points in
favour of Ms Mphephu, which led to the Court upholding the appeal. In view of this
substantial success, Ms Mphephu should have been awarded her costs in the appeal .
Consequently, the Supreme Court of Appeal’s costs order should be set aside.
[79] Similarly, the order by the Supreme Court of Appeal that costs in the High Court
should be “costs in the cause” must be overturned. It is not clear why, having reviewed
and set aside both the Identification Decision and the Recognition Decision, the
Supreme Court of Appeal did not award costs to Ms Mphephu. While the balance of
the review application is still to b e finally determined by the High Court, the orders of
invalidity made by the Supreme Court of Appeal are final in effect, and Ms Mphephu
ought to have been awarded her costs because of her success in the determination of
these issues.
[80] The only State respondent against whom the orders of invalidity made by the
Supreme Court of Appeal operate is the President. It is accordingly he who must pay
Ms Mphephu’s costs in the Supreme Court of Appeal and the High Court.
Costs in this Court
[81] What remains is the question of costs in this Court. I am mindful that this dispute
has been ventilated through the cases made out by private parties, and that the State
respondents elected to abide by the decision of this Court. However, it is trite that , in
determining which parties ought to bear the costs in litigation, “it is not correct to begin
36 Biowatch above n 16 at para 24.
KHAMPEPE J
30
the enquiry by a characterisation of the parties ”,37 for “the starting point should be the
nature of the issues”.38
[82] As I have already explained, the issues raised in this matter are of a constitutional
nature. Although the applicants effectively opposed part of the relief that is being
granted to Ms Mphephu, this does not change the fact that she sought this relief in
pursuit of the vindication of her constitutional rights, and that she had to do so on
account of a decision made by the President. After all, it was the unlawfulness of the
Recognition Decision that created the need for the courts’ involvement. Furthermore,
although the proceedings in this Court have comprised a multitude of applications from
private parties, the genesis of this flurry of litigation is State conduct. Moreover, this
matter is one which “involve[s] litigation between a private party and th e State, with
radiating impact on other private parties”.39
[83] In these circumstances, Biowatch dictates that the costs must be borne by the
State, even though the State respondents did not oppose these proceedings. This
approach safeguards the “over-arching principle of not discouraging the pursuit of
constitutional claims”40 and accords with this Court’s jurisprudence. 41 However, this
does not lay do wn an inflexible rule that the S tate should always foot the bill in
constitutional litigation between private parties. For example, Biowatch tells us that if
a private party litigates to uphold unlawful State conduct in a frivolous and vexation
manner, it “cannot expect that the worthiness of its cause will immunise it against an
adverse costs award”.42 In such a case, it may not be just and equitable for the State to
37 Id at para 16.
38 Id.
39 Id at para 28.
40 Id, where this Court held that this principle applies “ irrespective of the number of private parties seeking to
support or oppose the State’s posture in the litigation”.
41 See, for example, Walele v City of Cape Town [2008] ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067
(CC) at para 74; MEC for Education, Kwazulu-Natal v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2)
BCLR 99 (CC) at para 118; and Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd [2007]
ZACC 12; 2007 (6) SA 199 (CC); 2007 (10) BCLR 1027 (CC) at para 89.
42 Biowatch above n 16 at para 24.
KHAMPEPE J
31
carry the cost of the litigation. In this case, the applicants have not litigated in a
vexatious manner. Since it is the impugned decision of the President that lies at the
heart of this matter, it once again falls to him to bear Ms Mphephu’s costs.
[84] There was a request for punitive costs by Ms Mphephu. This was, however, on
the basis that costs were sought against the applicants . Punitive costs would
self-evidently be inapposite in the light of the order that I make. I am therefore
compelled to decline the request, and to make an order for costs on the ordinary party
and party scale.
Order
[85] The following order is made:
1. Condonation is refused in the main application.
2. The main application is dismissed.
3. Condonation is granted in the application for leave to cross-appeal.
4. Leave to cross-appeal is granted.
5. The cross-appeal is upheld to the extent set out in paragraphs 6 to 8 below.
6. Paragraph 1 of the order of the Supreme Court of Appeal is s et aside and
replaced with the order that:
“The appeal is upheld, and the second respondent is ordered to pay the
costs of the applicant.”
7. Paragraph 3(e) of the order of the Supreme Court of Appeal is set aside
and replaced with the order that:
“The second respondent is ordered to pay the costs of the applicants.”
8. Paragraph 3(f) of the order of the Supreme Court of Appeal is set aside.
9. The second respondent is ordered to pay the costs of the first respondent
in this Court.
For the Applicants:
For the First Respondent:
For the Second, Third and Seventh
Respondents:
I A M Semenya SC, T J Machaba
SC and S Poswa -Lerotholi SC
instructed by Nkhume Makhavhu
Attorneys
A Dodson SC, J Bleazard and
M Maenetje instructed by
Hammann-Moosa Incorporated
N M Arendse SC and
Z Z Matebese SC instructed by
Bhadrish Daya Attorneys