Ngoveni and Another v Premier of Limpopo Province and Others (1603/2020) [2024] ZALMPTHC 5 (29 January 2024)

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO LOCAL DIVISION, THOHOYANDOU)

CASE NO:1603/2020

REPORTABLE: YES/NO

OF INTEREST TO THE JUDGES: YES/NO

REVISED.

Date: 2024/01/29

In the matter between:

ACTION

TINYIKO NGOVENI 1ST

APPLICANT

NKHAMANYANE

ROYAL FAMILY 2ND

APPLICANT And

PREMIER

OF LIMPOPO PROVINCE 1ST

RESPONDENT

MEC

FOR COOPERATIVE GOVERNANCE

HUMAN

SETTLEMENTS AND TRADITIONAL AFFAIRS 2ND

RESPONDENT

CHAIRPERSON

OF LIMPOPO PROVINCIAL COMMITTEE

ON

TRADITIONAL LEADERSHIP DISPUTE 3RD

RESPONDENT

LIMPOPO

PROVINCIAL COMMITTEE ON TRADITIONAL

LEADERSHIP

DISPUTES AND CLAIMS 4TH

RESPONDENT

PROTECT

SAMBO 5TH

RESPONDENT

LIMPOPO

DEPARTMENT OF RURAL

DEVELOPMENT

AND LAND REFORM 6TH

RESPONDENT

LIMPOPO

HOUSE OF TRADITIONAL LEADERS 7TH

RESPONDENT

JUDGMENT

MONENE AJ

[1] Often I wonder, perhaps inappropriately and injudiciously, whether there is anything traditional and African in African leadership

disputes being determined in courts steeped in roman-dutch law ethos; which courts are manned, in the main, by persons of european descent, deculturised Africans and sometimes by persons too young to can ever have had standing in African traditional decision making processes and fora.

[2] Similarly, at times I struggle not to doubt whether there is anything leadership or sovereign or respectful in any leader who has to subsist on a salary or stipend or allowance from an authority or dominion foreign to the hierachy and culture he belongs to and lording over such leader.

[3] But then, that is the law and courts, inclusive of this one, owe fidelity to the law and must apply it as it currently obtains.

[4] The incidence of disputes over traditional leadership on these shores is so pervasive and prevalent that what really informs it deserves pertinent probing and studying. Exactly what it is that makes our traditional communities to forever be entangled in disputes over recognition pitting sibling against sibling and uncle against aunt is a mystery. it surely cannot be merely engendered by the prospect of the prestige of one being referred to as Thovhele, as Hosi, as Nkosi, or as Kgoshi or as Kgosigadi by mainly poverty-stricken,unemployed and unemployable indigenous African people constituting the demographics of these hotly contested traditional leadership spaces. nor can it merely be flowing merely from a pure traditionalist ethic seeking to protect the purity and authenticity of true royal blood lineage and so address the mess caused by the white colonial masters

who, in their heyday, definitely deposed authentic leaders in preference for collaborationist imposters. One hopes all these is not visited on our already bloated court rolls daily owing to the scramble for the stipend or salary paid to the traditional leaders by the government in a manner that would suggest that absent the salary the prospect of a monumental drop in traditional leadership disputes will be very high.

[5] This application is yet another one arising from a dispute over who should be recognised as traditional leader, it being so that the applicants were in 2015 unsuccesful in their claim for recognition.

[6] The applicants seek to review and set aside recommendations of the fourth respondent made to the first respondent and acted upon by the first respondent resulting in them not being recognised as traditional leader and traditional community.

[7] It being so that the recommendations and decisions sought to be reviewed in casu were made more than eight years ago and thus this application was launched manifestly out of the statutorily prescribed 180 days, the applicants’ first prayer is for their lateness to be condoned.

BACKGROUND

FACTS IN BRIEF

[8] The first applicant’s now late father, Magezi Titus Ngoveni, applied to be recognised as a traditional leader and for his community of Nkhamanyani to be recognised as a traditional community.

[9] Based on the recommendations of the fourth respondent, the first respondent declined that application and communicated his decision to the now deceased applicant on 9th November 2015 per letter dated 13th October 2015. The fourth respondent’s recommendations flowed from a report dated 13th October 2014 which according to the applicants was availed to them on 25th April 2016.

[10] Aggrieved by the unfavourable outcome of his application the first applicant’s father persued the matter under case number 397/2019 before this court. That application launched in 2019 is apparently still pending with the first applicant now having substituted his deceased father therein as one of the applicants.

[11] Post getting legal advice that the pending application will not give the applicants any joy, the applicants then launched this application on 2nd December 2020, purportedly after withdrawing as an applicant in the other matter.

[12] For reasons not immediately clear to this court, this matter appeared before me as an unopposed application three years after it was launched.

[13] I now have to first determine the condonation application and thereafter, if that hurdle is cleared, determine the merits.

AD

CONDONATION

[14] It is settled law that in determining an application for condonation I must examine the degree of lateness, the applicant’s

explanation for the delay, and the prospects of success all done through the prism of the overriding interests of justice principle.

[15] Indeed as correctly referred to by the applicants in their heads of argument the constitutional court stated as follows in Van Wyk v Unitas Hospital and Another [2007] ZACC 24; 2008 (2) SA 472( CC) (“ Van Wyk” ) at para 22:

“An applicant for condonation must give a full explanation for the delay. In addition, the explanation must cover the entire period of delay. And, what is more, the explanation given must be reasonable.”

[16] As I understand the application before, the decision sought to be reviewed dates back to October 2015.

[17] The first challenge to that decision happened in 2019 under case number 397/2019.

[18] This court is yet to be advised as to what happened in the period of close to four years between 2015 and 2019.

[19] That can hardly be termed a full explanation covering the entire period of the delay as called for by the constitutional court in Van Wyk referred to above. that should really be the end of this condonation application.

[20] Furthermore the events which unfolded after the launching of the first application leading to changing of legal representatives and ‘withdrawal’ from that application in order to launch this application, are accounted for in a very meagre and threadbare manner. There are so many gaps of unexplained periods in between the flippantly explained reasons why one four years late application is replaced by another five-years late application.

[21] The reasons advanced for the delay also fail to make sense to me.I still do not understand what was wrong with the first application and why it had to be abandoned by the applicants. it sounds to me like the applicants are saying they are asking for condonation because of their failure to pray properly in the first application. That can hardly be said to be reasonable by any stretch of the meaning of reasonableness. How does a party approach court and brazenly say to the court; “excuse me, I am late because five years ago I brought a shoddy application before court. I now disown it and want a fresh one to be heard. Please condone my lateness?”.

[22] Compounding the applicants’ problems in this matter are the virtually non-existent prospects of success on the merits in this application. For one there is in their own words a pending application ostensibly seeking to review and set aside recommendations of a commission from which the 2015 decision they seek to have reviewed flows. This not only infuses a strong lis pendens flavour into this matter but also raises the issue of whether the applicants are not putting the cart before the horse in seeking to review the first respondent’s decision not to recognise them before the review of the commission on whose recommendations the decision is predicated is heard. The confusion in the application is further worsened by the applicants’ reference to the Kgatla Commission as a party in their papers when that commission has not been cited in the matter.

[23] In Van Wyk referred to supra the court at para 20 stated as follows:

“ This court has held that the standard for considering an application for condonation is the interests of justice...Factors that are relevant to this enquiry include but are not limited ton the nature of the relief sought, the extent and cause of delay, the effect of the delay on the administration of justice and other litigants, the reasonableness of the explanation for the delay, the importance of the issue to be raised in the intended appeal and the prospects of success.”

[24] A review of an administrative action must in terms of the Promotion of Administrative Justice Act 3 of 2000(“PAJA”) be prosecuted within 180 days. At common law, a review must be launched within a reasonable time. This review

application was launched close to five years after the decision sought to be reviewed was made. The delay is, whether at PAJA or at common law, just inordinately too long and the explanation thereof inadequate and unreasonable. The prospects of success are close to nil.

[25] The legislature’s rationale at fixing the timeframes within which a review may be launched at 180 days was meant at striking a balance between a need to give persons aggrieved by administrative actions sufficient time to bring reviews and ensuring finality in matters decided administratively. It can never be in the interests of justice nor good governance for the effects of administrative actions to be open ended, perpetually under threat from review and forever clothed with uncertainty particularly where there are no reasonable explanations for delays.

[26] In the circumstances of a matter like the present, where all the condonation jurisdictional factoras frown upon the applicants, it follows that it will not serve the interests of justice to condone the late hearing of the review application.

[27] I am thus disinclined to grant condonation in this matter and accordingly will not venture to determine the application’s

merits.

[28] This is a matter where ordinarily, if the matter had been opposed, mulcting the applicants with a punitive costs order would not have been misplaced. However,no opposition was mounted perhaps informed by the blatant shortcomings in the application which effectively made it still-born.

[29] In all the above premises, the following order is made:

30.1 The condonation application is dismissed.

30.2 There is no order as to costs.

M

S MONENE

ACTING JUDGE OF THE HIGH COURT,

LIMPOPO LOCAL DIVISION, THOHOYANDOU

APPEARANCES Heard on 17 OCTOBER 2023 Judgment delivered on 29 JANUARY 2024 For the Applicants Adv. R Resenga Instructed by Kern, Dekker and Mathevhuli Inc, Louis Trichardt Email--kern@law.co.za //rhangani.rj@gmail.com Te:- 015 516 0136

Delivered electronically.