Rikhotso and Another v Premier of Limpopo Province and Others (346/2021) [2023] ZALMPTHC 19 (7 December 2023)

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO LOCAL DIVISION, THOHOYANDOU)

CASE NO:346/2021

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO THE JUDGES: YES/NO

(3) REVISED.

Signature

Date: 2023/12/07

In the matter between:

RIKHOTSO

ZANKOSI SIMON

1ST APPLICANT

XIKHUMBA

ROYAL FAMILY

2ND APPLICANT

and

PREMIER

OF LIMPOPO PROVINCE

1ST RESPONDENT

CHAIRPERSON

OF LIMPOPO PROVINCIAL

COMMISSION

ON TRADITIONAL DISPUTES

AND

CLAIMS

2ND

RESPONDENT

COMMISSION

ON TRADITIONAL LEADERSHIP

3RD RESPONDENT

DISPUTES

AND CLAIMS

LIMPOPO MEC FOR COOPERATIVE GOVERNANCE, 4TH RESPONDENT

HOUSING

AND TRADITIONAL AFFAIRS

A

K

MAHUMANI

5TH RESPONDENT

MAHUMANI

TRADITIONAL AUTHORITY

6TH RESPONDENT

JUDGMENT

MONENE AJ

[1] In this application an order is sought compelling the first respondent to deliver his reasons for declining the first applicants' application to be recognized as a traditional leader as well as that of his people to be recognized as a traditional community.

[2] The Application is opposed by the first to fourth respondents("respondents") on the basis that reasons sought have already been supplied by the first respondent.

[3] In the mix is thrown a condonation tiff between the parties it being so that the respondents' answering affidavit was filed out of time.

[4] A further preliminary point taken by the applicants is whether the deponent to the answering affidavit is authorized to depose to the affidavit on behalf of the first respondent.

BACKGROUND

FACTS IN BRIEF

[5] Following an application directed at the first respondent by the applicants in which they sought recognition of the first applicant as a senior traditional leader and for their community to be recognized as a traditional community, the applicants received a letter dated 17 March 2017 which informed them that their application was declined.

[6] The letter from the first respondent was couched, in part, in the following terms:

"2. 1 hereby inform you that the Limpopo Provincial Committee on Traditional Leadership Disputes and Claims has considered your claim. I have considered the findings and recommendations of the said Committee in terms of the provisions of the Traditional Leadership and Governance Framework Act 2003(Act No. 41 of 2003), as amended.

3. 1, in my capacity as Premier, hereby inform you that the claim is declined.

[7] Aggrieved by this letter the applicants applied, as is their right, for the full record predicating the decision.

[8] On 4 April 2018 the applicants were provided with the record comprising a report titled "Limpopo Provincial Committee Report on the Senior Traditional Leadership Claim of the Sikhumba Traditional Authority by Rikhotso Zankosi Simon Ref No. U19/42 Mopani District Municipality".

[9] Post receipt of the record, the applicants persisted per letter with their request for the first respondent to provide reasons for his decision to decline their recognition application.

[10] The first respondent replied per letter that the decision was premised on the recommendations of the Provincial Committee on Traditional Leadership & disputes a copy of which was obtainable at a fee.

[11] Consequent upon further requests for reasons for the first respondent's decision, the first respondent again wrote a letter couched in the same terms as above dated 7 March 2018. It has also been suggested that this latter letter was issued to replace the earlier one of 17 March 2017 which had apparently been issued pre-maturely or in error. Suffice to state that the contents of the two letters are the same. Additional thereto another letter on the same terms quoted above was dispatched to the applicants by the first respondent on 4 February 2021.

[12] In the meantime on 19 October 2021 the applicants launched review proceedings seeking to review the premier's decision as well as the Provincial Committee and Commission's reports. The reports sought to be reviewed and which according to the first respondent predicated his decision, were attached to the review application which tellingly was not prosecuted in terms of Uniform 53, at least to the extent of seeking a record and reasons with a view to supplement.

[13] It appears that this review application is still pending and with it pending the applicants, on 11 November 2022 launched this application to compel the furnishing of reasons.

CONDONATION

FOR THE LATE FILING OF THE ANSWERING AFFIDAVIT

[14] The first respondent was served with this application on 21 November 2022 and ought therefore to have filed his answering affidavit no later than 19 December 2022.

[15] Prior to filing an answering affidavit the first respondent sought the audience of the applicants in pursuit of mediation around 29 December 2022.

[16] While attempts at mediation ought to be encouraged as that is the whole reasoning behind the recent introduction of uniform rule 41A, it is still to be expected that parties must comply with the rules of court and that failure to comply should ordinarily be cured by substantive condonation applications.

[17] Not only did the first respondent file an answer many months past the deadline but he also did not file a substantive application for condonation opting instead to raise a condonation prayer in his heads of argument. This approach is not to be encouraged nor routinely tolerated.

[18] I am urged by the applicants to treat the answering affidavit as non-existent and disregard it for want of a condonation application.

[19] Much as I frown at the first respondent's callous disregard of the rules and non­ compliance thereof, I am disinclined to throw the respondents' answering affidavit out on account of the following considerations:

19.1 It is always this court's mantra that the interests of justice enjoin our courts to where possible, doable, and reasonable, always decide matters on the full spectrum of voices from all interested and available parties and not easily pander to exclusionary technicalities, that is, if fairness and justice are to be attained. In that regard this court takes counsel from Yacoob J in De Beer NO v North Central Local Council and South Central Local Council 2001 BCLR 110(CC) where the honourable justice stated that it is a crucial aspect of the rule of law that court orders should not be made without affording the other side a reasonable opportunity to state their case and that courts should, where reasonably possible, interpret and apply rules with a heavy leaning towards the audi alteram partem rule. I am further guided in that regard by the well-known Grootboom v National Prosecuting Authority 2014(2) SA 68(CC) at paragraphs 22 and 51, which, in my view is the lodestar of the standard for consideration of an application for condonation in the interests of justice.

19.2 It is only in extreme matters of non-compliance and where the condonation applicant has a manifestly unmeritorious case to advance, that condonation should be refused.

19.3 I always readily take counsel from the Constitutional Court in Buffalo City Municipality v Asia Construction (Pty) Ltd 2019 (4) SA 331 (CC) at paras 43 and 54 where it was stated that a court has a discretion to overlook a delay in the interests of justice and that factors to be considered in that regard are the prejudice scales between the parties as well as the import and consequences of an order to be granted subsequent to a condonation ruling.

19.4 I agree with counsel for the respondents, Mr. Gaisa's submission that in the context of the facts in casu the granting of condonation whether substantively sought or not will not prejudice the applicants at all and further that a fair and just outcome depends on hearing what the respondents have to say in this matter. I have not understood the applicants to be saying that the late filing of the answering affidavit has disabled them from replying to any aspect to their prejudice. On the facts, it cannot be that a replying affidavit was necessary at all as the bulk of the factual averments as to what happened from application to denial thereof is not in dispute.

[20] Consequently I am persuaded that the late filing of the respondents' answering affidavit should be condoned and accordingly condone same.

THE

LACK OF AUTHORITY POINT

[21] As I understand the point taken by the applicants it is that deponent to the answering affidavit who is described as an assistant director in the office of the fourth respondent ("The Coghsta MEC in Limpopo") lacks authority to depose to the affidavit on behalf of the first respondent, the Premier.

[22] Somewhat inelegantly or at least half-heartedly thrown into that point in limine seems to be a submission that the deponent to the answering affidavit cannot swear positively to what the answering affidavit avers but that submission falls short of alleging the deponent's evidence to be hearsay.

[23] It would seem further that the point is fledged further with an intimation that because the deponent works in the Coghsta office and not in the Premier's office and that because the two offices are distinct from each other therefore the deponent "shall never have authority to represent the Premier under no circumstances in legal standing."

[24] On any construction of the point taken by the applicant as per the papers, albeit inelegantly, and as argued before me, the applicants are really saying that the deponent to the answering affidavit lacks authority to depose on the first respondent's behalf.

[25] I have no intention of expending too much time on an aspect about which the law is settled. Any person who has reached the age of majority may depose to an affidavit on behalf of another. In Ganes v Telecom Namibia Ltd 2004(3) SA 615(SCA) at para 19 it has for close to decades now been stenciled into legal practice that it is irrelevant whether a deponent in motion proceedings is authorized to depose to an affidavit and that what is material and needs to be authorized is the institution of proceedings.

[26] It is fanciful and stretches the incredulously over-technical for the applicants to even remotely suggest that, given the contents of the answering affidavit in rebuttal of their compel application, it is somewhat probable that the Premier is unaware of the deponent's opposition to this application and that the deponent is just on some frolic of his own, unmandated.

[27] Resultantly, I am unhesitant in dismissing the applicants' lack of authority point in limine.

THE

ISSUE

[28] The crisp issue for determination is whether the first respondent's contention that he has provided the applicants with reasons for his decision is correct or not.

[29] The first respondent avers that the reasons for his decision are sufficiently covered in his letters of 17 March 2017, 7 March 2018 and 4 February 2021 referred to supra.

[30] It is the applicants' case that there are no reasons provided in any of those letters whose receipt they acknowledge.

THE

APPLICABLE LAW AS APPLIED TO THE FACTS

[31] In terms of section 33(2) of the Constitution everyone whose rights have been adversely affected by an administrative action has a right to be given reasons. In that regard therefore the Premier is obligated to provide the applicants with reasons why he declined their application. The question is whether he did provide reasons or not.

[32] The SCA in The Municipal Manager: The City of Johannesburg Mtropolitan Municipality and Others v Sun Ridge Heights Rental Property (Pty) Ltd (517/2022) (2023] ZASCA 109 (11 July 2023) at paragraph 13 underscored the obligation of a decision maker such as the first respondent to provide reasons in the following words:

"Section 33(2) of the constitution imposes a duty on public administrators to give written reasons to those whose rights have been adversely affected by administrative action. This constitutional obligation is given effect in PAJA, which sets out that any person whose rights have been materially and adversely affected by an administrative action and who has not been given reasons for the decision, is entitled to demand reasons for the administrator's decision."

[33] Much earlier in Minister of Education for the Western Cape v Beauvallon Secondary School (865/2013) [2014] ZASCA 218 ( 9 December 2014) at paragraph 19("Beauvallon") the SCA held that what constitutes reasons for purposes of section 33(2) of the constitution and the consequent PAJA threshold is whether the decision maker has given the one affected by the decision the gist of his reasons stating therein, inter alia, that "As long as the gist of his reasons was conveyed" then the decision maker was not obliged to spell out the reasons in great detail.

[34] A consistent thread throughout the three letters dispatched to the applicants by the first respondent in response to their request for reasons has been that the decision to decline the applicants' recognition application was premised on and informed by the recommendations of the Provincial Committee on Traditional Leadership and Disputes. A report relating to those recommendations has been received by the applicants and attached by them to this application as well as to their already issued review application.

[35] The obvious question which immediately hits me is what reasons are still needed and to what end since it is so that reasons for a decision and/or the record would be needed for the party displeased with the decision to be better placed in considering what recourse is available. As was stated in the selfsame paragraph 19 of the Beauvallon matter mentioned supra, a person affected by a decision usually cannot make further representations or take steps towards further recourse without knowing the reasons or factors which were considered by the decision maker.

[36] When the first respondent informed the applicants per letter more than once that his decision was informed by or predicated on the recommendations of the Provincial Committee on Traditional Leadership and Disputes and favoured the applicants with a copy thereof, he, in my view, gave the applicants much more than the gist of his reasons. There cannot be any other detail needed on those reasons.

[37] In fact regard being had to the purpose why reasons would be needed as reflected upon supra, the applicants appear to have been satisfied with the reasons provided as they were then able to chart a way forward by way of launching a review application. In that review application they were so sufficiently armed with reasons for the decision of the first respondent that they did not employ the rule 53 subrule in terms of which they could request reasons or the record. One really must wonder what reasons they now need and to what end.

[38] A further telling aspect of this matter is that in their replying affidavit in these proceedings the applicants do not attack the Premier's letter of 7 March 2018 as not providing reasons. They rather merely say that the letter was an afterthought.

[39] Whether or not the reasons given by the first respondent in the three letters to the applicants read with the report and recommendations of the Provincial Committee on Traditional Leadership and Disputes are afterthoughts, are cogent, adequate, or not is an enquiry which the review court will make and not this court seized with a compel application. At any rate it should be to the applicants' benefit if the reasons given by the Premier are in anyway wanting. But they are reasons and those reasons they have received.

[40] It stands to reason therefore that it is not available to the applicants to seek to compel the production or provision of that which has been in their possession already. Their compel application is thus a non-starter which must fail.

COSTS

[41] It may well be that the respondents have achieved success in this matter and should ordinarily be entitled to costs.

[42] Litigants such as the applicants in this matter are not known to have deep pockets from which to resource the launching of court proceedings and should be well advised not to embark on hopeless litigation journeys lest they be mulcted with debilitating costs orders particularly when pitting themselves against powerful state entities.

[43] I am however disinclined to grant a costs order favourable to the victorious respondents regard being had not only to the skewed power relations between the applicants and the respondents, but also to the fact that the respondents were not really smelling of roses before me as their condoned answering affidavit was needlessly and inexplicably filed very late. Indeed, as in track athletics events, what one loses on the curves one regains on the straights and vice versa.

[44] Resultantly the following order is made:

44.1 The application is dismissed.

44.2 There is no order as to costs.

M

S MONENE

ACTING JUDGE OF THE HIGH COURT,

LIMPOPO LOCAL DIVISION, THOHOYANDOU

APPEARANCES

Heard on: 09 October 2023 Judgment delivered on: 12/12/2023. For the Applicants: Adv S R Sibara Instructed by: Matsilele Attorneys Email: Matsileleattorneys@gmail.com For the 1st to 4th Respondents: Adv. E N Gaisa Instructed by: State Attorney, Thohoyandou Email: IMKhosa@iustice.qov.za