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REPUBLIC OF SOUTH AFRICA

“IN THE HIGH COURT OF SOUTH AFRICA”

NORTH WEST DIVISION, MAHIKENG

                                                                       CASE NO: M353/2017

In the matter between:

LEHLOMELA AMMANUEL LION                                             1^st Applicant

LION ROYAL FAMILY                                                              2^nd Applicant

BATAUNG BA HLALELE TRADITIONAL COUNCIL                3^rd Applicant

And

PREMIER OF THE NORTH WEST PROVINCE                                1^st Respondent

THE COMMISSION OF TRADITIONAL LEADERSHIP

DISPUTE AND CLAIMS                                                                    2^nd Respondent

MEC: DEPARTMENT OF                                                                  3^rd Respondent

CORPORATE GOVERNANCE

THE CHAIRPERSON: PROVINCIAL HOUSE OF TRADITIONAL LEADERS NORTH WEST PROVINCE                                                                      4^th Respondent

TSAJOA ROYAL FAMILY                                                            5^th Respondent

DAVID TSAJOA                                                                           6^th Respondent

MABOLOKA TRIBAL COUNCIL                                                 7^th Respondent

JUDGMENT

PETERSEN AJ:

INTRODUCTION

[1]         This application follows a litany of litigation between the applicants  the Lion Royal Family (“the LRF”) and the fifth, sixth and seventh respondents the Tsajoa Royal Family (“the TRF”) involving, amongst others, a traditional leadership dispute spanning a period of over six decades. A brief chronology of the events and litigation culminating in the present application is provided as background.

[2]         The second respondent (“the Commission”) was tasked with investigating the traditional leadership dispute in terms of the provisions of the Traditional Leadership and Governance Framework Amendment Act, 23 of 2009 (“the TLGFAA”). The recommendations of the Commission were submitted to the first respondent (“the Premier”) who after due consideration thereof announced her decision on 23 July 2013.

[3]         The LRF, aggrieved by the decision of the Premier, launched an urgent application in this Court on 06 November 2013 in which they sought to review and set aside the decision of the Premier. No similar relief was sought in respect of the findings and recommendations of the Commission. The relief sought, which was opposed, was consequently granted

[4]         The TRF, aggrieved by the judgment and order of the court a quo, with leave of the Supreme Court of Appeal successfully appealed the full judgment and order before a Full Court of this Division on 06 December 2016.

[5]         The LRF aggrieved by the judgment and order of the Full Court, sought special leave to appeal from the Supreme Court of Appeal.  On 17 March 2017, the Supreme Court of Appeal per Swain J and Fourie AJA refused special leave to appeal on the grounds that the requirements for special leave to appeal were not satisfied.

[6]         The LRF turned to the Constitutional Court. On 24 May 2017, a majority of eleven Justices of the Constitutional Court issued an order in the following terms:

“The Constitutional Court has considered the application for condonation and leave to appeal. It has concluded that the application for condonation should be granted, but that the application for leave to appeal should be dismissed with costs as it bears no prospects of success.

Order:

1. The application for condonation is granted.

2. The application for leave to appeal is dismissed with costs.”

THE RELIEF SOUGHT IN THE PRESENT APPLICATION

[7]         The present application was launched shortly after the order of the Constitutional Court. The LRF seeks before this Court an order, amongst others, setting aside the recommendations of the Commission and the decision of the Premier. In terms of the notice of motion the relief sought is set out as follows:

“1. That condonation of the late filing of this review application be condoned;

 2.  That the second respondent’s Recommendations on the Traditional Leadership Claim of Batuang Ba Hlalele by Lehlomela Lion for Senior Traditional Leadership Position (2013) addressed to the first respondent be reviewed and set aside;

3.   That the second respondent’s Recommendations on the Traditional Leadership Claim by Bataung Ba Hlalele by Madijeng Elizabeth Tsajoa against Lehlomela Lion (2013) addressed to the first respondent be reviewed and set aside;

4.   That the decision of the first respondent based upon the aforesaid  recommendations be reviewed and set aside;

5.   That the traditional leadership claims of the first applicant and the sixth respondent be remitted to the second respondent;

6.   That the first and second respondents as well as those parties who oppose the application be ordered to pay the costs of the application, including all reserved costs, jointly and severally, the one paying the other to be absolved;

7.    That such further and/or alternative relief be granted to the applicants as the above Honourable Court may deem fit.”  

[8]         In this Court, only the condonation applications by the parties and points in limine raised by the TRF were argued.

[9]         The LRF seek condonation for the late filing of the present application whilst the TRF seek condonation for the late filing of their answering affidavit. The TRF raised the principle of res juridicata as a point in limine as well as number of other points in limine which were not persisted in.

THE SUBMISSIONS

THE LRF’S CONDONATION APPLICATION IN THE REVIEW APPLICATION

[10]      The gist of the condonation application is premised on a submission that prior to 24 May 2017, findings and recommendations could not be reviewed and set aside, and that only decisions of an administrative organ were subject to review in terms of the Promotion of Administrative Justice Act, Act 3 of 2000 (“PAJA”).      

[11]      The LRF contend that when the Constitutional Court refused leave to appeal the judgment of the Full Court of this Division on 24 May 2017, this heralded a change in our law in respect of the reviewability of findings and recommendations. The submission is essentially that it became firm law that not only a decision but also a recommendation may be reviewed and set aside. Otherwise stated, if a decision is based on a recommendation then both the decision and the recommendation must be reviewed and set aside.

[12]      The LRF launched the present application within 180 days of the order of the Constitutional Court, submitting that the 24 May 2017 is the date on which they became aware of the fact that findings and recommendations are reviewable in terms of PAJA. The alternative submission is that if the 180 day period should be calculated from the date the recommendation was made, the omission should be condoned in that the failure to act timeously was not due to any fault on the part of the LRF. The LRF had laboured under the impression that the clear legal position was that only decisions were reviewable in terms of PAJA until the Constitutional Court dismissed their application.  

[13]      The TRF contend that the LRF’s condonation application should be dismissed as the delay is excessively long and unreasonable. In particular, issue is taken with the LRF’s submission that the prescribed statutory period of 180 days is calculated from the date of the Constitutional Court order on 24 May 2017. The TRF submits that the 180 day period provided for in section 7(1) of PAJA, should only apply from the date the LRF learnt of the Premiers decision in 2013.

[14]      The TRF submit further that the LRF have no reasonable prospects of success. The basis of this submission is that the LRF during the course of the litigation in the court a quo, were made aware that the attack on the findings and recommendations of the Commission as an organ of State without seeking an order to review and set aside same, rendered the application to have the Premier’s decision reviewed and set aside, defective. To this end reference is made to paragraph 4.10 of the answering affidavit in the application in the court a quo, which reads as follows:    

“4.10 I am further advised that although the applicants attack the findings and recommendations of the second respondent, the applicants seek no order to review and set aside the said findings and recommendations. I am further advised that the failure of the applicants to seek such an order renders their application defective with the result that it must be dismissed.”

[15]      The TRF contend that the submission by the LRF that recommendations are subject to review following the order of the Constitutional Court does not raise a novel issue. They submit that the findings and recommendations of a creature of statute, which they contend the Commission is, constitutes in terms of section 239 of the Constitution of the Republic of South Africa, 1996, administrative action, which until set aside by a Court of law on review, remains valid and binding. Further reliance for this submission by the respondents is said to be found at paragraph 32 of the Full Court judgment which reads as follows:

“Recognition that the second respondent’s recommendations constitute administrative action presuppose that until that decision is set aside by a competent court on review or overturned in an internal, (if applicable), it remains valid and binding. See Oudekraal Estates (Pty) Ltd V City of Cape Town 2004 (6) 222 (SCA) para 26. Whether the second respondents recommendations were right or wrong is of no consequence. They exist as a fact until set aside.”             

[16]         The TRF submit that the Constitutional Court’s refusal of leave to appeal was not premised on the status of the findings and recommendations of the Commission but on the basis that the application for leave to appeal bears no prospects of success.

THE TRF’S CONDONATION APPLICATION: THE LATE FILING OF THE ANSWERING AFFIDAVIT

[17]         The TRF filed their answering affidavit more than two years late. The explanation furnished is that their erstwhile attorneys failed to carry out their mandate despite an undertaking that the matter was in good hands. On 21 February 2019 this Court afforded the TRF an opportunity to file their answering affidavit by 29 March 2019 and mulched them with a cost order. The TRF submit that they have good prospects of success particularly on the principle of res judicata and accordingly seek condonation for the late filing of their answering affidavit.

[18]         The LRF submit that the explanation for the TRF’s delay in filing their answering affidavit is inadequate. They submit that when a trial date was set for 7 September 2018, with the notice of set down served on TRF on 6 August 2018, TRF had at that stage failed to file an answering affidavit. The result was that the application was eventually set down on the unopposed roll of 11 October 2018, the very same day an application by TRF under a different case number was set down. LRF was informed on 11 October 2018 for the first time that TRF would be opposing this application and tendered costs. Notwithstanding this Court postponing the matter to 21 February 2019, with an order that TRF file their answering affidavit by 30 November 2018, this was not done. TRF instead filed a notice in terms of Rule 30A(1) which was not pursued. TRF sought a further indulgence from the Court on 21 February 2019, resulting in the postponement of the matter to 21 June 2019. LRF seek an order dismissing the application by TRF for condonation with costs.        

RES JUDICATA

[19]         The gist of the submissions of the TRF on the res judicata doctrine is that the LRF in 2013 launched a similar application culminating in the order eventually given by the Constitutional Court. They submit that the present application concerns the same parties on the same issues and for the same relief which has been finally adjudicated. The fact that the argument raised in the present application may not have been raised in precisely the same manner as it was before the Court a quo is of no consequence. In particular, the TRF emphasize the fact that there was no prayer for the review of the Commission’s findings and recommendations in the pleadings before the Court a quo and that this does not exclude the application of the doctrine of res judicata.  

[20]         The LRF submit that res judicata finds no application as the issue between the parties is constrained to whether the Commission’s recommendations should be reviewed and set aside. They maintain that this issue has never been decided, which could impact on the decision that was made by the Premier.

THE TRF’S CONDONATION APPLICATION

[21]         I turn to consider the condonation application of the TRF in respect of the late filing of their answering application. The general approach to an application for condonation was succinctly stated in S v DI BLASI 1996 (1) SACR 1 (A) at 3F-H where the Court said:

“The general approach of this court to applications of this kind is well established. (see, eg, Federated Employers Fire and General Insurance Co Ltd and Another v Mckenzie 1969 (3) SA 360 (a) at 362f-h; S v Adonis 1982 (4) SA 901 (A) at 908h-909a and Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281d-f.) Relevant considerations include the degree of non-compliance, the explanation therefor, the prospects of success, the importance of the case, the respondent’s interest in the finality of the judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.”

[22]         In my view the TRF have failed to give a satisfactory explanation for the delay in filing their answering affidavit timeously. The fact that this Court granted at least two indulgences to the TRF accompanied by cost orders does not imply that condonation should be granted. It is, however, accepted that good prospects of success may compensate for the bad explanation for the delay. The importance of the case, the respondent’s interest in the finality of the judgment and the interests of justice are further factors which may trump the bad explanation for the delay.    

[23]         I am satisfied that on a consideration of the history of the litigation, the order of the Constitutional Court and the importance of bringing finality to the traditional leadership dispute which is in limbo presently, that condonation for the late filing of the answering affidavit should be and is hereby granted to the TRF.

THE LRF’s CONDONATION APPLICATION AND THE RES JUDICATA ISSUE

[24]         I turn to the condonation application of the LRF in the review application and the issue of res judicata. The following observations are highlighted at the outset. The Constitutional Court is not an organ of State. The provisions of section 7(1) of PAJA are clear and unambiguous. A review application can be brought within 180 days of being informed of the administrative action of an organ of state, having become aware thereof or in circumstances where it might reasonably be expected to have become aware thereof. It is common cause that the decision of the Premier was made known on 23 July 2013 and the period of 180 days to have the decision reviewed set aside commenced on the said date.    

[25]         The fact that the LRF assert that they only came to know that recommendations like decisions are reviewable in terms of PAJA following the final order of the Constitutional Court on 24 May 2017, does not create a legal basis from which to calculate the 180 day period. Logically, if the Court were to agree with the LRF on this score, no condonation application would have been necessary. The fact remains that the LRF have to apply for condonation because as at 24 May 2017, the LRF were close on four (4) years late with their current review application in respect of the recommendations of the Commission. It must follow that the submission by LRF that the present review application was launched within 180 days of the order of the Constitutional Court is bad in law. The pivotal point in adjudicating the condonation application by the LRF is from the expiration of the 180 period in 2013. In my view the condonation application by the LRF is inextricably linked to the res judicata argument raised by the TRF and should be considered as such.

[26]        The judgment of the Full Court and in particular the order is central to the adjudication of the condonation application by the LRF and the res judicata issue raised by the TRF. Both parties latch onto and isolate certain paragraphs of the Full Court judgment to support their respective arguments. An approach conducive to latching onto one aspect of the judgment on the issues in dispute without considering it in the context of the judgment on the issues in dispute as a whole, inevitably lends itself to the dangers of unintended or misconstrued interpretations, inclusive of the order of the Full Court.

[27]         In considering the issues at hand, this Court remains mindful of the fact that the order of the Full Court of this Division, in the traditional leadership dispute between the parties, has mustered approval in the Supreme Court of Appeal and the Constitutional Court as the apex Court. The order of the Supreme Court of Appeal was couched in very specific terms, “the requirements for special leave to appeal were not satisfied”. The order of the Constitutional Court is clear; the application for leave to appeal bears “no prospects of success”. The Constitutional Court did not consider the application for leave for appeal by referral to open Court but dispensed with same in chambers. The reasoning of the Constitutional Court is therefore unknown. This Court is constrained to consider the issues at hand with reference to the judgment and order of the Full Court as subsequently confirmed and the meaning ascribed to a reviewable decision in terms of PAJA. 

THE JUDGMENT OF THE FULL COURT

The findings in respect of the Commission and Premier

[28]         In considering the issues argued before this Court, the judgment of the Full Court merits careful scrutiny. A good starting point is paragraphs 6 and 34 where Kgoele J said:

“6 It is important at this stage to set out the prayers/relief that were sought by the fifth respondent’s (applicant then), the LRF (my insertion) in the Court a quo. They serve as the matrix of this appeal. They are couched as follows:

   “1.  That the Respondents are called upon to show cause why the following orders should not be made:- 

  1.1  That the acceptance by the First respondent of the North   West Province on 23 July 2013, of the following recommendations by the Second respondent on Traditional Disputes and Claims, namely:

1.1.1    That the Sechaba-sa-Bataung Traditional Authority was only established in 1961;

1.1.2    That John Mota Tsajoa was the first traditional leader of the Sechaba-sa-Bataung Tribal Authority;

1.1.3    That the Tsajoa Royal Family is the rightful custodial of traditional leadership in Sechaba-sa-Bataung tribe;

1.1.4    That Lehlomela Emmanuel Lion be removed from the headmanship of the Bataung ba Hlalele Tribe, previously known as the Sechaba-sa-Bataung Tribe and now to be known as the Maboloka Tribe; and

1.1.5    That the status of headmanship of the Bataung Ba Hlalele should not be elevated to that of senior traditional leadership because the claim did not meet the criteria for Senior Traditional Leadership,

should not be reviewed and set aside on the basis that:

1.2 Gross irregularities were committed in the proceedings, in that:

(a)   The decision and/or recommendation is contrary to the first respondent’s predecessor in title’s previous decision;

(b)   The first and second respondents were not entitled and/or at liberty to take the decisions that they did without the involvement of the Royal Family;

(c)   The Second respondent on Traditional Disputes and Claims (second respondent) and consequently the First respondent, North West Province, did not apply its/her mind to the matter properly or at all;

1.3      The decision was not in accordance with the law;

1.4    The decision was so unreasonable that no reasonable body, with full knowledge of all the applicable facts would have reached the same decision, as the Second respondent on Traditional Disputes and Claims did;

1.5  The decision and recommendation is ambiguous and

            incomprehensible.

1.6    That the status of headmanship of the Bataung ba Hlalele be elevated to that of senior traditional leadership and that Lehlomela Emmanuel Lion be recognized as the senior traditional leader of the Bataung ba Hlalele/Maboloka Tribal Authority.

1.7    That the first respondent’s recognition of the Tsajoa Royal Family (5^threspondent) as a rightful custodian of traditional leadership in Maboloka village be reviewed and set aside on the basis that same was ultra vires the first respondent.

1.8    That the first respondent’s recognition of David Tsajoa (6^threspondent) as headman of the Maboloka Tribal Authority be reviewed and set aside.

1.9      That the recognition of the Sechaba-sa-Bataung ba

Hlalele tribe by the Governor-General of the Union of South Africa (the first respondent’s predecessor in authority) on 23 January 1942, in Executive Council Minute 66, be restored and upheld.

1.10   That the second applicant’s recognition as the rightful

custodian of the traditional leadership of Sechaba-sa-Bataung ba Hlalele tribe be restored and upheld.

1.11   That the first applicant’s position as headman of the

Bataung ba Hlalele as previously recognized by the first respondent on 18 April 2009 be restored and upheld.

          34   It is important to indicate at the onset that this heading encapsulates all the other remaining grounds that the appellants relied on as it will become clearer below.  In the amended notice of motion dated 20 May 2014, as well as the accompanying founding and supplementary affidavits (of the respondents currently) that served before the Court a quo, the respondents in paragraph 1 of its notice of motion seek an order that:-

“the acceptance by the First respondent of the North West Province on the 23 July 2013 of the recommendations by the Second respondent on Traditional Disputes and claims be reviewed and set aside.””

[29]         The Full Court’s exposition of the legal framework under which the Commission operated and consideration thereof is succinctly set out at paragraphs 20 to 33. The following relevant paragraphs which impact on the issues under consideration are emphasized:

“22 Section 26A of the Amendment Act provides for the establishment of a Provincial Committee to deal with disputes and claims relating to traditional leadership. In terms of subsection 6 of Section 26A a Provincial Committee makes final recommendations on all the matters delegated to it in terms of Section 25(6) with a provision that where a committee is of the view that exceptional circumstances exist, it may refer the matter to the (National) Commission for advice. (my insertion and underlining for emphasis – Amendment Act refers to the TLGFAA)

24 Secondly, as to what constitute administrations actions should also be looked at having regard to PAJA. An administrative action is defined in Section 1 of PAJA to be, inter alia, a decision which adversely affects the rights of any person and which has a direct, external legal effect. (my underlining)

25 Thirdly, the Constitution of the Republic of South Africa, (the Constitution) should be looked at to resolve this question. An organ of state is defined in Section 239 of the Constitution as any functionary or institution performing a public function or exercising a power in terms of any legislation.

26  From all of the aforementioned legal framework it is clear that the second respondent is one of the bodies created under the Act.  Amongst others, its function is to investigate and make recommendations in regard to the disputes and claims arising between or within traditional communities.  It is also clear that the second respondent has powers to make recommendations of a final nature on a dispute lodged by any person having an interest therein.  It is furthermore clear that the recommendations of the second respondent directly affects the rights of a person(s) that lodged a claim or dispute and has a direct and external legal effect even before the first respondent decides to accept or reject it.  The second respondent investigated the dispute in this matter and made recommendations in this regard.  The action performed by the second respondent falls squarely within the definition of administrative action within the ambit of PAJA.  In my view, the recommendations are not just mere recommendations as contended by the fifth respondent but amounts to a decision which is separate and has legal consequences which is subject to and can be reviewed in terms of PAJA.

31 As already indicated above, the recommendations in this matter are of the Commission who does not have to consult with the first respondent in making its decisions.  There is absolutely no room for debate between the first and second respondents and they each could take a decision without the concurrence of the other.  As correctly submitted by the appellants, the recommendations of the second respondent and the decision of the first respondent are separate administrative acts of which each is competent to be reviewed. It is also clear that the decision to recommend lies with the second respondent whereas the decision to accept the recommendations and appoint lies with the first respondent… 

33   In my view, the Court a quo misdirected itself by finding that the recommendations of the second respondent is not a decision subject to review because they do not have the potential of adversely affecting anyone’s rights as they stand.”

Discussion of the Full Court’s Findings on the Commission recommendations and the Premier’s decision

[30]      It is clear that the formulation of the relief sought by the LRF in the court a quo was predicated predominantly on the recommendations of the Commission. In argument before the Full Court, the LRF submitted that the recommendations and decision of the Premier constituted one decision. In the court a quo the TRF drew the LRF’s attention to the defect in their review application when the LRF sought no order to review and set aside the Commission’s recommendations despite assailing the findings. The LRF amended the relief sought in the court a quo in specific terms, assailing the decision of the Premier yet failed to seek similar relief in respect of the Commission.

[31]      The Full Court found that the decision of the Premier was wrongly conflated with the recommendations of the Commission when full consideration is given to the legal framework under which the Commission operated. The Full Court specifically found that the findings and recommendations of the Commission constituted an administrative act of an organ of State or public functionary which was subject to review separate from the decision of the Premier. The decision of the Commission was found to have separate, binding legal consequences of a final effect. The TLGFAA makes this clear in section 26A(6).

[32]      The approach adopted by the LRF in the court a quo was legally flawed as the Full Court judgment demonstrates. In this regard the Full Court said the following at paragraph 35, which gives context to the paragraphs 20 to 34 of its judgment:

“35         If one looks at the grounds in support of this prayer, the respondents in essence attacks the findings and recommendations of the second respondent.  As correctly submitted by the appellants, they seek no order to review and set aside same as a separate prayer.  What the respondents did was to conflate the decision of the first respondent with the recommendations and treated them as one.  This is borne by the fact that respondents as applicants then, continuously in their grounds that supported their prayer for review referred to the decision of the Premier and/or recommendations.  In addition to the above, it appears that the respondents placed before the Court a quo the information that were or ought to have been placed before the second respondent.”

[33]      The judgment of the Full Court in my view did not change the law in respect of the reviewability of decisions in terms of PAJA. The Full Court highlighted an abiding reality of obvious catastrophic consequences for the LRF. The reality is that, by not seeking an order reviewing and setting aside the Commission’s decision and conflating same with the decision of the Premier, the Premier’s decision exercised independently, albeit by having regard to the Commission’s recommendations, on its own could not be assailed. This ultimately formed the basis of the order of the Full Court which in my view did not create a novel issue in respect of the reviewability of recommendations.

THE MEANING OF “DECISION” AND “ADMINISTRATIVE ACTION” IN PAJA

[34]      I turn to the meaning of decision and administrative action as defined in PAJA. In terms of section 1 of PAJA a “decision” is defined, inter alia, as follows:

“‘decision’ means any decision of an administrative nature made, proposed to be made, or required to be made, as the case may be, under an empowering provision, including a decision relating to –

(a) making, suspending, revoking or refusing to make an order, award or determination;

[35]      In GREY’S MARINE HOUT BAY (PTY) LTD & OTHERS v MINISTER OF PUBLIC WORKS & OTHERS [2005] ZASCA 43; 2005 (6) SA 313 SCA, Nugent JA considered what constitutes administrative action with reference to the definition in PAJA and stated as follows at paragraphs 21 to 23:

“21         What constitutes administrative action – the exercise of the administrative powers of the State – has always eluded complete definition.  The cumbersome definition of that term in PAJA serves not so much to attribute meaning to the term as to limit its meaning by surrounding it within a palisade of qualifications.  It is not necessary for present purposes to set out the terms of the definition in full: the following consolidated and abbreviated form of the definition will suffice to convey its principal elements:

‘Administrative action means any decision of an administrative nature made … under an empowering provision [and] taken … by an organ of State, when exercising a power in terms of the Constitution or a provincial constitution, or exercising a public power or performing a public function in terms of any legislation, or [taken by] a natural or juristic person, other than an organ of State, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect …’ (my underlining)

22  At the core of the definition of administrative action is the idea of action (a decision) ‘of an administrative nature’ taken by a public body or functionary. (my underlining) Some pointers to what that encompasses are to be had from the various qualifications that surround the definition but it also falls to be construed consistently, wherever possible, with the meaning that has been attributed to administrative action as the term is used in s 33 of the Constitution (from which PAJA originates) so as to avoid constitutional invalidity.

23 While PAJA’s definition purports to restrict administrative action to decisions that, as a fact, ‘adversely affect the rights of any person’, I do not think that literal meaning could have been intended. For administrative action to be characterised by its effect in particular cases (either beneficial or adverse) seems to me to be paradoxical and also finds no support from the construction that has until now been placed on s33 of the Constitution. Moreover, that literal construction would be inconsistent with s 33(1), which envisages that administrative action might or might not affect rights adversely.   The qualification, particularly when seen in conjunction with the requirement that it must have a ‘direct and external legal effect’, was probably intended rather to convey that administrative action that has the capacity to affect legal rights, the two qualifications in tandem serving to emphasize that administrative action impacts directly and immediately on individuals. (my underlining)

[36]      The Commission as an administrative organ was required to act on or make a decision or determination of an administrative nature on, inter alia, the traditional leadership dispute in accordance with the empowering provision of the TLGFAA. The decision or determination of the Commission determined the legal rights of the interested parties or otherwise stated had the capacity to affect the legal rights separate from the decision of the Premier, and impacted directly and immediately on the parties. 

CONCLUSION

[37]      What is the effect of the aforementioned considerations on the present application? The LRF have not provided a satisfactory explanation for the lateness of the present application, save to construe the Full Court’s judgment as endorsed by the Supreme Court of Appeal and Constitutional Court as having heralded a change in our law and created a novel issue. The order of the Full Court as a matter of law would have been the main consideration in the leave to appeal process irrespective of any alleged flawed reasoning. If the Commission’s recommendations and the applicable legal paradigm set out by the Full Court were carefully considered by the LRF in the review application, considering the vociferous attack of the Commission’s recommendations, the LRF in fact should have sought an order to have the recommendations reviewed and set aside.

[38]      If, on the assertion of the LRF, the appeal process has confirmed that recommendations like decisions are reviewable and that this is a novel issue, it remains inexplicable why the Constitutional Court would have missed an opportunity to have the matter fully ventilated in open Court.  I am not convinced that an inference can be drawn from the order of the Constitutional Court that recommendations are reviewable in terms of PAJA. The ineluctable deduction must be that there is no novel issue created by the Full Court judgment which would have merited the attention of the Constitutional Court.

[39]     The decision of the Premier prevails and remains unassailable in terms of paragraph 57.2 of the order of the Full Court which reads:

“57.2        The order of the Court a quo that the decision of the first respondent be reviewed and set aside on all aspects except on the elevation of the headman to that of Senior Traditional Leader is set aside and is replaced by the following order:-

“The application to review and set aside the first respondent’s decision is dismissed with costs.”

[40]      There are in my view no reasonable prospects of success of the review application, given the order of the Full Court and final order of the Constitutional Court.

[41]      The application for condonation by the LRF must accordingly fail, on the basis that the principle of res judicata finds applicability and further that no reasonable explanation has been given by the LRF why condonation should be granted.

COSTS

[42]      The TRF have been successful in their opposition to the LRF’s condonation application and on the point in limine on res judicata. I am satisfied that costs should follow suit in the ordinary course.

ORDER

[43]      In the result, it is ordered that:

1. The application for condonation by the fifth, sixth and seventh respondents for the late filing of their answering affidavit is granted;

2. The point in limine on the doctrine of res judicata is upheld.

3.The application for condonation for the late filing of the review application by the applicants is dismissed.

4. The applicants are ordered to pay the costs of the fifth, sixth and seventh respondents, jointly and severally, the one paying the other to be absolved.

____________________

AH PETERSEN

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION

For the Applicants: ADV AB ROSSOUW SC

Instructed by: PK POTO ATTORNEYS

For the Respondents: ADV MM ADOONS

Instructed by: CHAUKE-S ATTORNEYS

Date Heard: 21 JUNE 2019

Date of Judgment:  22 AUGUST 2019

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