REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE N2: HCAA10/2022
COURT AQUO CASE N2: 2651/2022
(1)
(2)
(3)
REPORT ABLE : YES/NO
OF INTERES T TO THE JUDGES : YES/NO
REVISED. YES
SIGNATURE. ____ _ DATE: 03 September 2026
In the matter between:
KHAKHALA TRADITIONAL COMMUNITY
GEZANI BEN BALOYI
MASENYANI THOMAS BALOYI
and
HOSI MKHACANI KENNETH SHIVITI
SHIVITI TRADITIONAL COUNCIL
SHIVITI TRADITIONAL COMMUNITY
PREMIER OF LIMPOPO PROVINCE
THE MEC: CO-OPERATIVE GOVERNANCE;
HUMAN SETTLEMENT AND TRADITIONAL
AFFAIRS
First Appellant
Second Appellant
Third Appellant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
2
COMMISSION ON TRADITIONAL LEADERSHIP;
DISPUTES AND CLAIMS
THE LIMPOPO PROVINCIAL COMMITTEE
OF THE CTLDC (KGATLA COMMISSION)
GOVERNANCE AND TRADITIONAL AFFAIRS
LIMPOPO PROVINCIAL HOUSE
OF TRADITIONAL LEADERS
MOPANI HOUSE OF TRADITIONAL LEADERS
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
Delivered: This judgment is handed down electronically to the parties' representative's
email. The date for delivery is deemed to 03 September 2026
Reserved date: 07 August 2026
JUDGMENT
Coram Naude-Odendaal J et al, Pillay J and Malatji AJ
Introduction
1. This is an application for condonation and the reinstatement of an appeal brought by
the appellants, purporte<:ily in terms of rule 49(6)(b) of the Uniform Rules of Court. The
appeal arises from a judgment delivered by Semenya DJP on 3 August 2021.
2. The appellants applied for leave to appeal against that judgment. On 30 May 2022,
Semenya DJP granted leave to appeal to the Full Court of this Division. The appellants
thereafter took steps to prosecute the appeal, which was enrolled for hearing on 14
October 2022. On that date, the appeal was struck from the roll with costs.
3. The appeal was subsequently re-enrolled for hearing on 12 May 2023. Before it could
be heard, however, the appellants delivered a notice withdrawing the appeal. It did not
contemporaneously seek an order preserving its rights, nor did it promptly approach this
3
Court for leave to revive or reinstate the appeal. The present application was instituted
only during October 2025, more than two years after the said withdrawal.
4. The application raises three principal questions. The first is whether rule 49(6)(b), which
empowers a court to reinstate an appeal on good cause shown, is available where the
appeal was expressly withdrawn rather than merely allowed to lapse through failure to
prosecute it. The second is whether, assuming that this Court has the necessary power,
the appellant has established good cause for condonation and reinstatement. The third
concerns the appropriate order as to costs.
5. The first to third respondents (the respondents) opposed the application on a point of
law. They contended that the appellants had voluntarily terminated the appeal and could
not invoke a rule directed at an appeal that had lapsed. No other respondents opposed
the application or the appeal.
The principle governing Court's power to reinstate the appeal
6. Rule 49(6)(b) provides that the court to which an appeal is made may, on good cause
shown, reinstate an appeal. The rule ordinarily operated where an appeal has lapsed
because it was not prosecuted within the prescribed period. A party seeking
reinstatement consequently asks the court to relieve it from the ordinary consequences
of procedural non-compliance.
7. The respondents' contention that a withdrawn appeal is materially different from a
lapsed appeal is not without force. A lapsed appeal generally follows automatically from
non-compliance with a procedural time limit, whereas a withdrawal is an overt
procedural act communicating that the appellants no longer persist with the appeal. The
legal consequences of those two events need not necessarily be identical.
8. It is nevertheless unnecessary, for purposes of deciding this application, to determine
the outer limits of rule 49(6)(b). I assumed, without deciding, that this Court may in an
the outer limits of rule 49(6)(b). I assumed, without deciding, that this Court may in an
appropriate case invoke that rule, alternatively the Court's inherent power under section
173 of the Constitution to regulate its own process, to revive an appeal that was
previously withdrawn. That assumption favours the appellants. It does not, however,
dispose of the application. The power remains discretionary, and its exercise depends
4
upon the appellants establishing good cause and demonstrating that reinstatement
would serve the interests of justice.
9. The fact that leave to appeal had previously been granted does not alter the character
of the present enquiry. In Zweni v Minister of Law and Order, 1 the Appellate Division
explained the requirements governing appealability and leave to appeal. In the present
matter, however, appealability is not the obstacle: leave was granted. The difficulty is
the appellants' later withdrawal of the appeal and its prolonged failure to seek relief.
Zweni accordingly does not relieve the appellants of the obligation to establish good
cause for reinstatement.
10. The point of departure remains Melane v Santam Insurance Co Ltd.2 The Court held
that condonation entails a judicial discretion exercised upon a consideration of all the
facts and, ultimately, fairness to both parties. Ordinarily relevant factors include the
extent of the delay, the explanation for it, the prospects of success, the importance of
the matter and the respondents' interest in finality. Those factors are interrelated and
must not be applied mechanically or considered in isolation.
11 . The contemporary formulation is that condonation must serve the interests of justice.
Grootboom v National Prosecuting Authority and Another3 confirms that the enquiry may
include the nature of the relief, the extent and cause of the delay, the reasonableness
of the explanation, the effect on the administration of justice and other litigants, the
importance of the issues, prejudice and prospects of success. The weight assigned to
each consideration depends upon the circumstances of the particular case.
12. Condonation is not available merely for the asking. An applicant must furnish a full,
reasonable and sufficiently particularised explanation for the default. Where the non
compliance is time-related, dates, periods, obstacles and the steps taken to overcome
compliance is time-related, dates, periods, obstacles and the steps taken to overcome
them must be stated with enough precision to enable the court to understand the delay
and allocate responsibility.
1 Zweni v Minister of Law and Order 1993(1) SA 523 (A).
2 Melane v Sanlam Insurance Co Ltd 1962 (4) SA 531 (A).
3 Grootboom v National Prosecuting Authority and Another2014(2) SA 68 (CC).
5
13. That requirement was emphasised in Uitenhage Transitional Local Council v South
African Revenue Service,4 Generalised causes of delay, disconnected from the relevant
timeframe, do not suffice. The explanation must be candid and accurate and must show
what was done to achieve compliance at the earliest reasonable opportunity.
14. A further consideration is that an application for condonation must be brought as soon
as the need for it becomes apparent. Delay in seeking condonation is itself a matter
requiring explanation. The Court must therefore assess not only the conduct that caused
the appeal to lapse or be withdrawn, but also the period during which the appellants
failed to seek corrective relief.
15. Prospects of success are important but are not invariably decisive. Strong prospects
may sometimes compensate for a delay that has been adequately, though imperfectly,
explained.5 Conversely, an excessive delay coupled with a materially deficient
explanation may justify refusing condonation even where the intended appeal raises an
arguable issue. The Court must maintain an appropriate balance between deciding
disputes on their merits and enforcing procedural discipline, fairness and finality.
The extent of the delay and explanation advanced
16. The delay in this matter was substantial. The appeal was withdrawn on 12 May
2023. Following the withdrawal of the appeal on 12 May 2023, the appellants did not
promptly approach the Court for relief. The present application was launched only in
October 2025. On any measure, a period exceeding two years was an extraordinary
delay in the prosecution of an appeal.
17. The delay was considered against the earlier procedural history. This was not the first
occasion on which the appeal failed to proceed. It had already been struck from the roll
on 14 October 2022. It was later re-enrolled and then withdrawn shortly before the
hearing scheduled for 12 May 2023. Those events placed the appellants on notice that
hearing scheduled for 12 May 2023. Those events placed the appellants on notice that
the appeal required active, careful and timeous management.
18. "fhe appellants therefore had to explain, in full, why no prompt application was brought
after the withdrawal. It also had to explain in detail what the community and its
4 Transitional Local Council v South African Revenue Service 2004(1) SA 292 (SCA).
5 Premier Limpopo Province and Others v Hlaneki and Others (Appeal)(HCAA22/2024)[2026) ZALMPPHC
74 (31 July 2026) para 27.
6
authorised representatives did during the intervening period to monitor the litigation and
protect the right of appeal. The longer the period of inactivity, the more compelling and
detailed the explanation had to be.
19. The appellants attribute the delay principally to the conduct of three successive sets of
former attorneys. A fourth set, the present attorneys, was eventually instructed to
institute this application. According to the appellants, the first former attorneys obtained
leave to appeal and prosecuted the appeal until it was struck from the roll on 14 October
2022. The second set attended to its further prosecution but caused the appeal to be
withdrawn when it was enrolled for 12 May 2023. The third set allegedly failed over a
period of several months to provide adequate reports or take effective steps to advance
the matter.
20. The appellants characterise the conduct of its erstwhile attorneys as negligent, dilatory
and, in certain respects, deliberately misleading. It submits that a traditional community
with an interest in the underlying dispute should not lose its opportunity to appeal merely
because its chosen representatives failed to discharge their professional obligations.
21. Courts are understandably reluctant to visit every procedural failure by an attorney upon
an innocent litigant. That consideration is especially important where the litigation
concerns a community and the conduct complained of could not readily be attributed to
every member of that community. It does not follow, however, that legal representation
severed the litigant from all responsibility for the conduct of the case.
22. In Saloojee and Another NNO v Minister of Community Oevelopment,6 the Appellate
Division held that there is a limit beyond which a litigant cannot escape the
consequences of an attorney's lack of diligence or an insufficient explanation. A litigant
who knows that a prescribed period has expired cannot simply entrust the matter to an
who knows that a prescribed period has expired cannot simply entrust the matter to an
attorney, remain passive in the face of a manifestly protracted delay, and then expect
complete absolution. If reliance is placed on an attorney's remissness, the litigant must
explain why responsibility for the default should not also be attributed to it.
23. That principle applies with considerable force in these proceedings. The present matter
does not involve a single clerical error followed by an immediate attempt to regularise
6 Sa/oojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A).
7
the proceedings. The appeal had already been struck from the roll; it was thereafter re
enrolled; it was then expressly withdrawn; and more than two years passed before
reinstatement was sought. On the appellants' own version, the matter moved through
several firms of attorneys and there were periods during which meaningful updates were
not received.
24. The founding papers did not provide a complete chronology. The appellants did not
state with adequate precision what instructions were given to each firm of attorneys,
when the relevant files were transferred, when written progress reports were requested,
what responses were received, when the appellants first learned of the witlildrawal,
whether that withdrawal had been authorised, when dissatisfaction with each attorney
arose, and why the mandate was not terminated sooner.
25. The papers also did not satisfactorily identify the representatives of the community who
bore responsibility for communicating with the attorneys and monitoring the appeal.
There was no detailed account of meetings, resolutions, correspondence, telephone
calls or other enquiries from which the Court could conclude that the appellants acted
with consistent vigilance. Broad allegations that attorneys failed to provide updates
could not replace a candid, date-specific explanption of a delay exceeding two years.
26. The circumstances surrounding the withdrawal of the appeal were particularly troubling
and remained inadequately explained. The appellants asserted that their former
attorney misrepresented the position by advising that the appeal had become moot, on
the basis that the review application; against which the appeal was directed; had itself
been withdrawn. This explanation, however, raised more questions than it answered
and did not withstand careful scrutiny.
27. Critically, the appellants have failed to explain why they did not take immediate steps to
verify the accuracy of this representation. If the appeal was of sufficient importance to
verify the accuracy of this representation. If the appeal was of sufficient importance to
the appellants and the community, one would reasonably have expected that the
appellants would have demanded sight of the formal notice of withdrawal of the review
application. Such a document would have been readily available and would have
confirmed or refuted the attorney's assertion. The appellants' failure to make this
elementary enquiry, or to seek independent confirmation, suggested a level of passivity
that was inconsistent with the diligence expected of a litigant pursuing an appeal.
8
28. The absence of any contemporaneous documentation; such as correspondence with
the former attorney, instructions given, or enquiries made further undermined the
appellants' explanation. In circumstances where a litigant places reliance on the conduct
of its legal representatives, it was incumbent upon that litigant to provide a full and
candid account of its own actions. The appellants have not done so.
29. In sum, the explanation for the withdrawal was vague, unsupported by corroborating
evidence, and fails to account for the appellants' own inaction. The appellants could not
simply shift all responsibility to its erstwhile attorneys while offering no explanation for
its own failure to act timeously or to take reasonable steps to protect its interests.
30. Nor could negligence simply be inferred from the procedural outcome. The first
attorneys obtained leave to appeal and secured an enrolment. The second attorneys
took steps that culminated in a withdrawal, but the reasons for and authority underlying
that withdrawal were not fully set out. The allegations against the third attorneys were
similarly general. A court could not make findings of professional negligence or
misrepresentation merely based on averments made by a litigant without the relevant
proof and account of the matter not progressing as the litigants expected.
31 . Even if one assumed that one or more former attorneys were negligent, the appellants'
own conduct remains material. Once an appeal had been struck from the roll and
subsequently withdrawn, reasonable litigants would ordinarily have been expected to
demand immediate written advice concerning the status of the matter and any available
remedy. Repeated procedural setbacks called for enhanced supervision, not continued
passivity.
32. The Constitutional Court's reasoning in Ferris and Another v First Rand Bank Ltd,7
reinforced the point that an attorney's negligence did not invariably provide a reasonable
reinforced the point that an attorney's negligence did not invariably provide a reasonable
explanation. The effect of professional default depended upon the full facts, including
the litigant's knowledge and conduct after learning of the adverse procedural event.
33. Measured against these principles, the explanation was deficient in both detail and
substance. It did not cover the entire material period. It did not demonstrate that the
appellants acted with reasonable expedition once the appeal had been withdrawn. It did
7 Ferries and Another v First Rand Bank Ltd 2014 (3) SA 39 (CC).
9
not adequately separate periods of attorney inactivity from periods of inaction by the
appellants themselves. The delay is therefore not satisfactorily explained.
Prospects of success
34. The appellants relied upon the fact that Semenya DJP granted leave to appeal to the
Full Court. That fact is relevant. It indicated that the court of first instance had considered
that the appeal met the applicable threshold for leave and that another court might
reasonably have reached a different conclusion on one or more issues arising from the
judgment.
35. The grant of leave was, however, not determinative of an application for reinstatement.
It did not excuse subsequent non-compliance, neutralise a voluntary withdrawal, or cure
an inadequate explanation for prolonged inactivity. If the position had been otherwise,
the grant of leave would effectively have conferred an indefinite entitlement to prosecute
an appeal whenever the appellants elected to do so. That would have been inconsistent
with the Rules and with the respondent's legitimate interest in finality.
36. The material supplied in support of the present application did not disclose prospects
so overwhelming that they outweighed the extreme delay and the absence of a
satisfactory explanation. The appellants may have had an arguable appeal; indeed, the
grant of leave supports that conclusion. But arguability was not the same as compelling
prospects. The Court had not been placed in a position to conclude that refusal of
reinstatement would perpetuate an evident injustice or sustain an order that was plainly
untenable.
37. In Uitenhage Transitional Local Council v South African Revenue Service,8 the Supreme
Court of Appeal reinstated the appeal despite a deficient explanation because the merits
were sufficiently strong to save the application. That case illustrates the flexible nature
of the discretion; it does not establish that prospects of success rescued an applicant
of the discretion; it does not establish that prospects of success rescued an applicant
from serious procedural default. Here, the papers did not demonstrate comparable
strength on the merits.
8 Utenhage Transional Local Council v South Africa Revenue Service [2003] ZASCA 76; 2004 (1) SA 292
(SCA).
10
38. Melane9 requires an objective conspectus of all relevant circumstances. The factors
must be weighed together, but that does not mean that every weakness can be cured
by pointing to another favourable consideration. A delay of more than two years
following an express withdrawal, an explanation that does not cover the entire period,
uncertainty regarding the authority, and an inadequate account of the appellant's own
supervision collectively carry considerable weight.
Prejudice, finality and the administration of justice
39. The appellants submit that reinstatement would permit the underlying dispute to be
determined on its merits and that this consideration favoured access to justice. That
submission was accepted at the level of principle. Courts were to, where reasonably
possible, avoid determining substantive rights solely through procedural technicalities.
Rules of court are, nevertheless, not technical obstacles without purpose. They promote
the orderly, fair and expeditious resolution of disputes.
40. Based on withdrawal of the appeal with no further steps being taken by the appellants
it was not far-fetched for the respondents, to have regulated their affairs on the basis
that the litigation had reached finality. Although the appellants argued that any prejudice
could be addressed by a costs order, prejudice was not confined to wasted legal
expense. It included the prolonged uncertainty associated with litigation, the difficulty of
reconstructing events after the passage of time, and the loss of the benefit of a judgment
that had remained unchallenged in practical effect.
41. There is also prejudice to the administration of justice. The appeal rolls generally are
arranged on the footing that litigants will comply with procedural obligations and act
promptly when clefaults occur. This appeal had already occupied two hearing dates; it
was struck from the roll in October 2022 and was withdrawn before the hearing in May
was struck from the roll in October 2022 and was withdrawn before the hearing in May
2023. T'o revive it in October 2025 without a compelling explanation would undermine
the discipline necessary for the effective functioning of the courts.
42. Grootboom10 cautions that the effect of delay on the administration of justice and other
litigants forms part of the interests-of-justice enquiry. It also stresses that a party must
9 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).
10 Grootboom v National Prosecuting Authority and Another 2014(2) SA 68 (CC).
11
make out a proper case for the indulgence sought. In the present matter, the importance
of obtaining a merits determination did not eclipse the appellants' failure to provide the
Court with the facts necessary to excuse the default.
43. The appellants' status as a traditional community was a relevant contextual
consideration, but it could not confer immunity from the Rules. The Court had not been
told of any structural, financial, governance or communication difficulty within the
community that caused particular periods of delay. It would be speculative to attribute
the default to circumstances peculiar to communal decision-making when the founding
papers did not establish those circumstances.
Evaluation
44. Even on the assumption that rule 49(6)(b), alternatively this Court's inherent power,
permits the reinstatement of an appeal that was expressly withdrawn, the appellants
were obligated to have established good cause. The appellants failed to do so.
45. The delay was extreme. The explanation was general, incomplete and insufficiently
linked to a coherent chronology. It did not adequately explain the withdrawal, the
authority for it, the date upon which the appellants became aware of it, or the failure to
institute proceedings promptly thereafter. It did not demonstrate sustained vigilance by
the appellants while the matter was in the hands of successive attorneys .
46. The blame attributed to the former attorneys could not, in the circumstances, carry
decisive weight. Saloojee makes clear that there comes a point at which a litigant cannot
avoid the consequences of its chosen representative's lack of diligence, particularly
where prolonged delay -h.as become obvious and the litigant does not explain its own
efforts to obtain progress. That point was reached in this matter.
47. The grant of leave to appeal indicated that the intended appeal was arguable, but it did
not establish prospects of such strength as to overcome the cumulative deficiencies in
not establish prospects of such strength as to overcome the cumulative deficiencies in
the application . No sufficient basis had been shown for concluding that the interests of
justice required the appeal to be revived after the appellants withdrew it and then
remained inactive for more than two years.
48. Fairness should operate in both directions. The appellants had an interest in having the
dispute reconsidered on appeal. The respondents had an interest in finality, compliance
12
with the Rules and freedom from the indefinite revival of proceedings. On the facts
placed before the Court, the latter considerations, together with the requirements of the
proper administration of justice, prevailed.
49. As a result, the reinstatement application stands to be dismissed.
50. For clarity, the dismissal of this application effectively means that the appeal remains
withdrawn and lapsed. Nothing in this judgment determines the merits of the underlying
appeal nor does it express a view on whether the appellants' former attorneys were
negligent or not. The conclusion rests upon the appellants' failure to establish good
cause for condonation and reinstatement.
Costs
51. The ordinary rule is that costs follow the result. That rule is not inflexible. A court retains
a discretion, to be exercised judicially, having regard to the conduct of the parties, the
manner in which the proceedings were opposed, and what fairness requires in the
particular circumstances .11
52. The first to third respondents opposed the application for condo nation and reinstatement
from the bar. No answering affidavit directed at the factual basis for condonation and
reinstatement was delivered, and no notice of intention to raise a question of law was
filed.12 The answering affidavit that was filed dealt with the substance of the appeal
rather than the condonation and reinstatement relief presently before the Court.
53. Although the first to third' respondents have been .successful, its manner of opposition
did not justify an a.ward of costs in its favour. In the exercise of this Court's discretion,
the appropriate order is that each party bear its own costs.
Order
54. The following order is made:
54.1. The application for condonation and reinstatement of the appeal is dismissed .
54.2. There is no order as to costs.
11 Fripp v Gibbon & Co 1913 AD 354; Kruger Bros & Wasserman v Ruskin 1918 AD 63; Ferreira v Levin No;
Vryenhoek v Powel No 1996(2) SA 621 (CC) at para 3.
Vryenhoek v Powel No 1996(2) SA 621 (CC) at para 3.
12 Uniform Rules of Court: Rule 6(5)(d)(i)-(iii).
13
I agree:
I agree:
APPEARANCES:
T.M. MALATJI AJ
Acting Judge of the High Court,
Limpopo Division, Polokwane
of the High Court,
PILLAY J
Judge of the High Court,
Limpopo Division , Polokwane
FOR THE APPELLANTS: Adv Moela (with Adv Chauke)
INSTRUCTED BY: Mavundla Attorneys
FOR THE FIRST TO THIRD RESPONDENTS: Adv C Malatji (with Adv Hutamo)
INSTRUCTED BY: M & M Maiwashe Attorneys