Summary of Judgment

1. Introduction

This judgment concerned an opposed application for leave to appeal in the Western Cape Division of the High Court, Cape Town. The proceedings arose after the court had previously granted an order mandating the Stellenbosch District Municipality to grant unrestricted and uninterrupted access to initiates at an initiation school then underway at Idas Valley, Stellenbosch, for specified categories of persons including the principal, parents, care-givers, medical personnel, and traditional healers and herbs-persons.

The parties were Rashid Makhubela (cited as the applicant in the matter) and the Stellenbosch District Municipality (cited as the respondent). The leave-to-appeal proceedings were directed at the correctness of the earlier order (granted in motion proceedings) which, on the court’s description, was grounded in mandament van spolie principles.

The general subject-matter of the dispute, as treated by the court in the leave-to-appeal judgment, was access to initiates during an initiation process and whether the Municipality had unlawfully interfered with possession or quasi-possession so as to justify spoliatory relief. The court also engaged with the scope and relevance of statutory definitions relied on by the Municipality in resisting the earlier order.

2. Material Facts

The court treated as material that, in the underlying proceedings, it had granted an order compelling the Municipality to provide unrestricted and uninterrupted access to initiates for a defined group: the principal, parents, care-givers, medical personnel (including traditional healers and herbs-persons). The initiations were stated to be then underway at Idas Valley.

The leave-to-appeal grounds addressed, among other matters, the Municipality’s opposition in the underlying motion, including its denials relating to whether the applicant and others had the requisite form of possession, whether there had been an unlawful deprivation, and whether the applicant was a principal. The court characterised some of the Municipality’s positions as speculative and irrelevant opinions, and treated those denials as the type that could properly be rejected on the papers.

The court also treated as material the procedural context: the matter was decided by way of application procedure (motion proceedings), in which courts decide matters on the written record and argument, and in which witnesses do not ordinarily appear unless a discretion is exercised in the interests of justice.

Insofar as statutory context was relied upon, the court considered it material that the earlier dispute, on the applicant’s point of departure as the court understood it, was not about the admission of initiates to an initiation school or child protection, but specifically about access, including access for purposes of training, monitoring, evaluation and assessment. The court regarded certain statutory definitions invoked as being directed more to admission and child protection than to the access issue before it, and it gave the example of the definition of “customary guardian”.

3. Legal Issues

The central legal question was whether leave to appeal should be granted, which depended on whether the contemplated appeal had reasonable prospects of success.

In addressing prospects, the court was required to assess whether its earlier decision (granting spoliatory relief and compelling access) was arguably wrong on the grounds advanced. Those grounds raised questions concerning the application of legal standards to the record (including the proper approach to factual disputes in motion proceedings), together with the relevance and reach of certain statutory definitions to the dispute about access.

The issues were therefore primarily concerned with the application of law to fact in motion proceedings (including the treatment of denials and whether oral evidence was necessary), together with a limited question of statutory relevance and interpretation (in the sense of whether statutory definitions extended to the categories of persons for whom access was ordered).

4. Court’s Reasoning

The court approached the matter as a leave-to-appeal application and focused on whether the proposed appeal carried reasonable prospects of success.

On the first ground, which related to the attestation of the Municipality’s answering affidavit in the underlying motion, the court reasoned that the issue (as raised) did not demonstrate prejudice warranting leave to appeal. The court noted that it had in fact addressed the contents of the statement made on behalf of the Municipality, and that the matter did not “end” on the technical basis that there was no answer. The court further explained that the proceedings were by application: courts decide the matter on the papers and argument, and witnesses do not ordinarily testify unless the court, in the interests of justice, directs otherwise. Against that procedural setting, the court expressed disapproval of a lax attitude to court papers, particularly answering affidavits, and considered itself entitled to record its displeasure.

On the second ground, the court emphasised that the earlier matter was a mandament van spolie and stated that the applicable law had been set out and applied. It reasoned that it had provided full reasons for its decision, including rejecting the Municipality’s denials that the applicant and others were in possession, that they were unlawfully deprived of possession, and that the applicant was a principal. The court characterised the relevant material in the answering affidavit as consisting of speculative irrelevant opinions. It held that such denials could properly be rejected without recourse to oral evidence, and described them as uncreditworthy denials capable of being rejected on the papers, invoking the approach reflected in Fakie NO v CCII Systems (Pty) Ltd.

On the third ground, the court rejected the contention (as it understood it) that the earlier matter concerned admission of initiates and child protection. The court stated that the matter dealt specifically with access to initiates and with issues of training, monitoring, evaluation and assessment, which in its view extended beyond the case of an initiate who was a child. The court regarded the identity of those who should be permitted such access as central. It then reasoned that some of the statutory definitions relied upon by the Municipality were more aligned to the admission question and child protection, and did not “stretch far enough” to reach parents, family members and care-givers, as well as medical personnel, in the way those categories were understood in the initiation-school context described.

Lastly, the court addressed the criticism relating to its analysis and its views concerning the conduct of the Acting Municipal Manager, Ms de Beer. It stated that nothing in its analysis went beyond the facts as it understood them. In that context, it expressed strong disapproval of the Municipality’s conduct and stance toward initiation as a cultural practice, and linked that to questions of dignity and respect for others as conditions for the common good. These remarks formed part of the court’s explanation for why it did not consider the proposed appeal to have merit.

Overall, the court concluded that it was not persuaded that an appeal would have reasonable prospects of success, and therefore refused leave to appeal.

5. Outcome and Relief

The court dismissed the application for leave to appeal. The application was dismissed with costs.

Cases Cited

Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA).

Legislation Cited

The Customary Initiation Act (as referred to in the judgment).

The Children’s Act (as referred to in the judgment, including section 18).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the proposed appeal did not have reasonable prospects of success. It held that the attestation-related complaint did not establish prejudice warranting leave, that the matter had correctly been approached as one for mandament van spolie, and that the Municipality’s denials could properly be rejected on the papers as uncreditworthy. It further held that the statutory definitions relied upon did not, on the court’s understanding, extend far enough to govern the access dispute in the manner contended for by the Municipality. Leave to appeal was accordingly refused and the application was dismissed with costs.

LEGAL PRINCIPLES

The judgment applied the principle that leave to appeal should be refused where the proposed appeal lacks reasonable prospects of success.

In motion proceedings, courts generally decide disputes on the written record and argument, and witnesses do not ordinarily testify unless the court exercises a discretion to permit oral evidence in the interests of justice.

In proceedings for mandament van spolie, the court applied the established approach to spoliation and reaffirmed that speculative, irrelevant, or uncreditworthy denials in affidavits may be rejected on the papers, consistent with the approach endorsed in Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA).

Where statutory definitions are relied upon, the court treated their scope and reach as a matter to be assessed against the actual subject of the dispute before it, and it concluded that the definitions invoked did not extend to determine the access-related issues as framed in the case.