Van der walt v Metcash Trading Ltd

CONSTITUTIONAL COURT OF SOUTH AFRICA Tshivhulana Royal Family v Nditsheni Norman Netshivhulana CCT 48/16 Date of hearing: 1 November 2016 ________________________________________________________________________ MEDIA SUMMARY ________________________________________________________________________ The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court. On 1 November 2016 at 10h00, the Constitutional Court will hear an application for to appeal concerning whether Tshivhulana Royal Family (the applicant) was leave required internal remedies prescribed by section 21 of the Traditional Leadership and Governance Framework Act 41 of 2003 (Framework Act) before instituting review proceedings in court. to exhaust The applicant brought an application in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) before the Limpopo Local Division of the High Court, Thohoyandou (High Court). The application sought to review and set aside the decision of the Premier of the Limpopo Province (Premier) to recognise the respondent as the traditional headman of Tshivhulana settlement and substitute it with the recognition of Davhana Elias Mulaudzi (Davhana) pursuant the Limpopo Traditional Leadership and Institutions Act 6 of 2005 (Limpopo Act). Two points of contention were raised by the respondent. First, that an interested party to proceedings ought to have been joined in the application. To this end, the Court held the contrary. Second, that the applicant had to exhaust internal remedies as provided for in section 21 of the Framework Act before instituting a review under PAJA. The Court held that section 21 contained internal dispute resolution mechanisms to resolve disputes relating to the appointment of a headman. Accordingly, it held that the issues to be adjudicated could be resolved by the section 21 remedies and dismissed the application. The Supreme Court of Appeal dismissed the application for leave to appeal due to the lack of prospects of success. to section 12(1)(b) of In this Court, the applicant submits that if the process in terms of Chapter 6 of the Framework Act is used, it will lead to a reconsideration of the recognition by the same body that had already discharged the decision. The applicant further submits that the review application concerned a dispute between the applicant and the Premier and not a dispute within a traditional community. It argues that section 12(3) of the Limpopo Act and section 11(4) of the Framework Act obliges the Premier to recognise the person identified by its constitutional rights of access to the courts and just administrative action. Lastly, it submits the applicant for reconsideration represents an act performed contrary to the applicable law as well as one not authorised by the empowering provision. the relevant royal family. the Premier’s failure the matter back It argues the matter implicates to refer that that to The respondent submits that a defendant has the right to demand that another party be joined to the proceedings if that party has a “direct and substantial interest” in the matter and accordingly contends that the High Court erred by dismissing the point to join a party to the proceedings. He submits that the applicant was not entitled to approach the courts before attempting to resolve the matter internally in terms of section 21. The respondent submits further, the applicant has failed to show that the Premier has acted contrary to the leadership. legislative framework for Moreover, if the applicant did not agree with the Premier’s appointment, it should have first raised the matter with the Premier. the recognition and appointment of traditional