Lebenya and Another v Nelani and Others (1119/09) [2019] ZAECMHC 56 (25 September 2019)

Lebenya and Another v Nelani and Others (1119/09) [2019] ZAECMHC 56 (25 September 2019)

The court found that the appellants had unduly delayed the institution of review proceedings by more than 30 years, with no satisfactory or comprehensive explanation for the delay. The presumption is that affected parties acquire knowledge of published administrative decisions, and ignorance of the law is not a valid excuse. The explanation provided by the appellants was limited to subjective knowledge acquired in 2008, with no account for the actions or knowledge of previous Chiefs or council members. The court held that the delay was unreasonable and, in the absence of a full and reasonable explanation covering the entire period, condonation could not be granted. The prejudice to...

Citation
[2019] ZAECMHC 56
Parties
Appellant: Gregory Khomotsoane Lebenya; Appellant: Bakoena Traditional Council; Respondent: Vuyisile Nelani; Respondent: Premier of the Eastern Cape; Respondent: MEC for Local Government and Traditional Affairs E.C.; Respondent: Chairperson House of Traditional Leaders E.C.
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
25 September 2019
Case Number
1119/09
Procedural Posture
Civil Appeal / Appeal From Dismissal of Review Application by Court a Quo
Outcome
Appeal dismissed with costs, including costs of two Counsel.
Judges
T Malusi, B R Tokota, A M Da Silva
Legal Topics
Unreasonable Delay, Review of Administrative Action, Condonation, Traditional Leadership, Consultation Requirements
Administrative Law Civil Procedure Unreasonable Delay Review of Administrative Action Condonation Traditional Leadership Consultation Requirements

Case Brief

Summary, issues, holding and outcome

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Parties

Gregory Khomotsoane Lebenya

Appellant

Bakoena Traditional Council

Appellant

Vuyisile Nelani

Respondent

Premier of the Eastern Cape

Respondent

MEC for Local Government and Traditional Affairs E.C.

Respondent

Chairperson House of Traditional Leaders E.C.

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Review Application by Court a Quo

Legal Issues

  1. 1 Whether the appellants unduly delayed the institution of review proceedings and whether such delay should be condoned.
  2. 2 Whether the 1976 administrative decision to disestablish the Bakoena Tribal Authority and establish the Nguni Tribal Authority was lawfully taken.
  3. 3 Whether the process of consultation required by statute was properly followed in the making of the 1976 decision.

Ratio Decidendi

The court found that the appellants had unduly delayed the institution of review proceedings by more than 30 years, with no satisfactory or comprehensive explanation for the delay. The presumption is that affected parties acquire knowledge of published administrative decisions, and ignorance of the law is not a valid excuse. The explanation provided by the appellants was limited to subjective knowledge acquired in 2008, with no account for the actions or knowledge of previous Chiefs or council members. The court held that the delay was unreasonable and, in the absence of a full and reasonable explanation covering the entire period, condonation could not be granted. The prejudice to...

Court Disposition

Appeal dismissed with costs, including costs of two Counsel.

Orders

  • The appeal is dismissed.
  • The appellants are ordered to pay the costs of the first respondent, including costs of the application for leave to appeal and any reserved costs, jointly and severally, the one paying the other to be absolved. Such costs are to include costs of two Counsel.