Members of the Murangoni Royal Family and Another v Tshivhase Traditional Council and Others (1241/2018) [2021] ZALMPTHC 7 (30 September 2021)

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO LOCAL DOVISION; THOHOYANDOU.

CASE NO: 1241/2018

In the matter between:

MEMBERS OF THE MURANGONI ROYAL FAMILY 1ST APPLICANT

NYAWASEDZA NEMURANGONI 2ND APPLICANT

And

TSHIVHASE TRADITIONAL COUNCIL 1ST RESPONDENT

THE PREMIER OF LIMPOPO 2ND RESPONDENT

MEC: COOPERATIVE GOVERNANCE

AND TRADITIONAL AFFAIRS: LIMPOPO 3RD RESPONDENT

DISTRICT MANAGER: DEP OF TRADITIONAL

AFFAIRS 4TH RESPONDENT

JAMES NNDWAKHULU NEMURANGONI 5TH RESPONDENT

SAMSON NTHANYISENI NEMURANGONI 6TH RESPONDENT

JUDGMENT

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and the release to SAFLII. The date and time for the hand-down is deemed to be 10:00 on the 30 September 2021.

SEMENYA DJP

[1] The 1st and 2nd applicants launched an application wherein the following order is sought:

1. The review and setting aside of the 1st, 2nd, 3rd and 4th respondents' administrative action or decision of recognising the 6th respondent as the headman of Murangoni village;

2. Directing the 2nd 3rd and 4th respondents to stop paying stipend or salary to the 5th respondent as the headman of Murangoni village

3. Directing the respondents and applicants to comply with the court order date the 01 June 2004 in convening the lawful consultation for the nomination of the headman or headwoman.

[2] It is necessary to state right for the outset that there is a confusion with regard to the numerical reference to the parties in the affidavits filed by both sides. This court will refer to the parties as stated in the affidavit, but will state the correct number in square brackets ([ ]). It appears from the affidavits filed of record that the confusion emanates from the fact that there is a previous court application involving the very same parties which was launched in this court.

[3] Although no specific mention is made to the provisions of the Promotion of Administrative Justice Act[1] (PAJA) in the founding affidavit, the applicants did not dispute the allegations made by the 5th and 5th respondents (respondents) in respect of its applicability. The identification of a suitable person to occupy a position of a headman by the royal family and the recognition of the person as such by the Premier involves the exercise of a public function. The 1st respondent derives its power to identify a suitable person from the Limpopo Traditional Leadership and Institutions Act[2] (the Act). I am therefore in agreement with the respondents that the provisions of PAJA are indeed applicable in this matter.

[4] The applicants seek to review administrative decision of the 1st, 2nd, 3rd and 4th respondents of recognising the 6th respondent as the headman of Murangoni village. The respondents are opposing the application and have raised two points in limine in that regards. The first point in limine is of the applicants' alleged lack of locus. However, the applicants abandoned this point in limine during the hearing of the matter. In the second point, the respondents allege that the applicants failed to comply with the statutory requirements as laid down in PAJA in that, firstly, the applicants failed to institute this application within a reasonable time and/or within180 days as provided for in section 7 of PAJA. Secondly, that the applicants failed to comply with the provisions of section 5 of PAJA by not requesting reasons for the decision from the administrator prior to the institution of the proceedings. Thirdly, that they failed to list the grounds upon which the review is sought as envisaged in section 6 of PAJA. This judgment relates to the points in limine only.

Application not instituted within 180 days:

[5] Section 7 (1) of PAJA provides that proceedings for judicial review must be instituted without unreasonable delay and:

i. within 180 days from the date on which internal remedies (if any) have been concluded; or

ii. in the absence of internal remedies, the application must be brought within 180 days from the date on which the applicant:

iii. was either informed of the administrative action; or

iv. might reasonably have been expected to become aware of the administrative action and the reasons thereof.

[6] The respondents contended that the 3rd [2nd] respondent recognised the 6th respondent as a headman on the 26 October 2009. In support of this contention, respondents annexed "JNN1" to the answering affidavit as proof of such recognition. It was submitted by the respondents that the application to review the decision was instituted nine years later without any application for condonation. The applicants stated in the replying affidavit that it is the royal family that appoints and send the name of the appointee to the 3rd respondent for approval. The legal position with regard to the recognition of a headman is that the royal family must identify a suitable person according to their custom. The royal family must thereafter forward the name of the person so identified to the Premier who will recognise the person as a headman by publication in the Government Gazette. It is therefore the 2nd respondent has the authority to recognise a traditional leader as envisaged in section 12 of the Act.

[7] In paragraph 6 of the founding affidavit it is stated that:

"The purpose of the Application is to review the process taken by (James Nndwakhulu Nemurangoni) when conducting the nomination/appointment/selection/recommenidoantof the next/new headman of Murangoni village as the said meeting was not lawful and/or properly constituted as the following family members of Murangoni Royal Family were not invited... "

The applicants bear the onus to prove that the review was instituted without unreasonable delay or within the prescribed period. The date on which the meeting was held and the name of the appointed person are not stated in the founding affidavit. The date of the meeting is crucial for the purposes of the computation of the days within which the impugned the decision was taken. James Nndwankhulu Nemurangoni is the 5th respondent in this matter. Although it stated that the purpose of the application is to review the process followed by the 5th respondent in the nomination of a headman, it is of concern that the 5th respondent is not included in prayer 1 as one of the persons or institutions whose decision is sought to be reviewed.

[8] The applicants stated further that:

"Pursuant to the said meeting the Second applicant was informed by a reliable source that the sixth respondent has been appointed as a new/next headman of Murangoni village and when Maandamel Mpfariseni Ralph (chairperson of the Nemurangeni royal family) approached the office of the third respondent and he was informed that the sixth respondent is the next headman of Murangoni village... ".

The dates on which the 2nd applicant and the chairperson of royal family were informed about the appointment of the 6th respondent are not stated. It could be any time before or shortly after the 6th respondent's recognition as headman by the 2nd respondent as contended by the respondents. In that case the respondent's contention that the application was instituted nine years out of time has merit.

[9] Internal remedies:

It was stated as follows in Reed v Master of the High Court [3]:

"The dictionary definitions of the words 'internal' and 'remedy' that I have cited are in harmony with the way the composite term 'internal remedy' is understood in the more specialised context with which this matter is concerned: when the term is used in administrative law, it is used to connote an administrative appeal - an appeal, usually on the merits, to an official or tribunal within the same administrative hierarchy as the initial decision-maker - or, less common, an internal review. Often the appellate body will be more senior than the initial decision-maker, either administratively or politically, or possess greater expertise. Inevitably, the appellate body is given the power to confirm, substitute or vary the decision of the initial decision-maker on the merits. In South Africa there is no system of administrative appeals. Instead internal appeal tribunals are created by statute on an ad hoc basis."

Section 7(1) of PAJA makes provision for the conclusion of internal remedies in the computation of the period within which the application for review of an administrative action must be instituted. In this regard, the applicants referred to a court order dated the 4 June 2004 in which the 5th respondent was directed and instructed to convene a meeting of the royal family and the council in order to resolve the dispute relating to the identification of a headman of Murangoni village. The applicants aver that pursuant to the court order, they have written several letters to the 5th respondent in which they were requesting him to convene a meeting for the purpose of identifying a new headman. The applicants addressed a letter to the 4th respondent inviting its officials to a meeting that was to be held on the 28 June 2013. It is alleged that the 2nd applicant was identified as a headwoman in that meeting. The 1st respondent was informed about the identification of the 2nd applicant on 5 March 2015 . The 1s t respondent accordingly informed the 3rd respondent with a request that the identification be approved.

[10] The applicants aver that they learnt that the 1st respondent was receiving a stipend in December 2017 . The person who was receiving a stipend in a complaint lodged with the 3rd respondent is referred to as Samson. I can only assume that the applicants intended to say that it is the 6th respondent who is cited as Samson in the notice of motion, and not the 1st respondent, as a person who is said to be paid a stipend. In a letter dated the 7 March 2018 the 3rd respondent confirmed that the 6th respondent was indeed paid a stipend. The applicants stated that they have written letters to the 1s t, 3rd and 4th respondents in which they raised concerns about the issue of stipend and in the end, instituted this application when the issue was not resolved.

[11] The applicants first became aware of the recognition of the 5th respondent as headman of Murangoni around 2009. Despite this fact, the applicants decided not to institute the review application until 2018 after they learnt that the 5th respondent was receiving a stipend. The applicants failed to be specific about crucial dates as stated elsewhere in the judgment, despite of the onus that lies on them. The applicants further failed to institute the review application even though it was pertinent from the responds they have received or have not received from all respondents with whom they have tried to engage. I am in agreement with the respondents' contention that the application was not instituted without unreasonable delay.

[12] The applicants appear to be of the view that section 13 of the Act provides internal remedies as envisaged in section 7 of PAJA. This is so in that the said section was quoted in paragraph 14 of the founding affidavit. However, despite their awareness that the royal family has a duty to inform the Premier of their decision to remove the 5th respondent within a reasonable time, they failed to allege that such step was taken. There has never been any communication between the applicants and the 2nd respondent. The applicants further failed to prove the existence of the jurisdictional facts provided for in section 13(1) of the Act, upon which a headman may be relieved of his duties. The applicants therefore failed to prove that they have concluded the internal remedies provided for in section 13 of the Act.

Request for reasons:

[13] ] Section 5 (1) of PAJA reads as follows:

"Any person whose rights have been materially and adversely affected by administrative action and who has not been given reasons for the action may, within 90 days after the date on which that person became aware of the action or might reasonably have been expected to have become aware of the action, or might reasonably have been expected to have become aware of the action, request that the administrator concerned furnish written reasons for the action."

The applicants omitted to reply to the point in limine that they failed to comply with section 5(1) of PAJA in their replying affidavit. This court will therefore accept that the request was not made. It appears from the reading of section 5(1) that the applicants were not obliged to request reasons for the administrative action. This conclusion is arrived at because of the use of the word 'may" in the subsection. It is only the administrator who is obliged to give written reasons upon request. This point in limine stands to be rejected for that reason.

Failure to allege grounds of review:

[14] In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others[4] it was held that:

"[25] The provisions of section 6 divulge a clear purpose to codify the grounds of judicial review of administrative action as defined in PAJA. The cause of action for the judicial review of administrative action now ordinarily arises from PAJA, not from the common law as in the past . And the authority of PAJA to ground such causes of action rests squarely on the Con st it ut ion. It is not necessary to consider here causes of action for judicial review of administrative action that do not fall within the scope of PAJA. As PAJA gives effect to section 33 of the Constitution, matters relating to the interpretation and application of PAJA will of course be constitutional matters."

"6. Judicial review of administrative action

(1) Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.

(2) A court or tribunal has the power to judicially review an administrative action if-

(a) the administrator who took it-

(i) was not authorised to do so by the empowering provision;

(ii) acted under a delegation of power which was not authorised by the empowering provision; or

(iii) was biased or reasonably suspected of bias;

(b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;

(c) the action was procedurally unfair;

(d) the action was materially influenced by an error of law;

(e) the action was taken-

(i) for a reason not authorised by the empowering provision;

(ii) for an ulterior purpose or motive;

(iii) because irrelevant considerations were taken into account or relevant considerations were not considered;

(iv) because of the unauthorised or unwarranted dictates of another person or body;

(v) in bad faith; or

(vi) arbitrarily or capriciously;

(f) the action itself-

(i) contravenes a law or is not authorised by the empowering provision; or

(ii) is not rationally connected to-

(aa) the purpose for which it was taken;

(bb) the purpose of the empowering provision;

(cc) the information before the administrator; or

(dd) the reasons given for it by the adm inist rat or;

(g) the action concerned consists of a failure to take a decision;

(h) the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function; or

(i) the action is otherwise unconstitutional or unlawful."

Although the respondents raised a point in limine that the applicants failed to allege the grounds of review, the applicants failed to address this aspect in their replying affidavit. This court is in the dark with regard to which of the grounds referred to in section 6 is the applicants relying upon. This aspect is exacerbated by the fact that the applicants alleged in paragraph 6 of the founding affidavit that the purpose of the application is to review the process adopted by the 5th respondent even though the 5th respondent is not mentioned in prayer 1.

[15] The applicants failed to comply with the provisions of section 6 and 7 of PAJA by failing to institute the proceedings within a reasonable time and by failing to allege the grounds upon which they rely.

[16] In the results I make the following order:

The points in limine are upheld with costs.

M V SEMENYA

DEPUTY JUDGE PRESIDENT;

LIMPOPO LOCAL DIVISION;

THOHOYANDOU.

APPEARANCES

HEARD ON 17 AUGUST 2021

JUDGMENT DELIVERED ON 30 SEPTEMBER 2021

FOR THE APPLICANTS : ADV T P MATADZI

INSTRUCTED BY : NEGOTA ATTORNEYS

FOR THE RESPONDENTS : ADV GUMEDE

INSTRUCTED BY :MATHOBO, RAMBAU & SOGOGO ATTORNEYS; THOHOYANDOU

[1] 3 of 2000.

[2] 6 of 2005

[3] [2005) 2 All SA 429 (E)

[4] [2004] ZACC 15; 2004 (7) BCLR 687 (CC); 2004 (4) SA 490 (CC)