Mbolekwa and Another v Premier of the Eastern Cape and Others (Pakati J) [2024] ZAECMHC 1 (19 January 2024)

Key Facts

Issues

• The first legal issue centers on the validity of the respondents' refusal to recognize the first applicant as Chief of Governors Drift Administrative Area. The applicants argue this decision constitutes an error of law, irrationality, and failure to follow statutory procedures under the Traditional Leadership and Governance Framework Act and the Eastern Cape Traditional Leadership and Governance Act. The court reviews whether the respondents' reliance on sections 1 and 23(12) of the EC-TLG Act to justify non-recognition is legally sound, particularly given the applicant's documented lineage and the Royal Family's recommendation.
• The third issue examines the respondents' assertion that their decision to refuse recognition was lawful and reasonable. The applicants contend that the decision ignored critical evidence from the Native Commissioner, failed to provide adequate reasons, and was influenced by a misinterpretation of the EC-TLG Act. The court determines if the decision falls within the bounds of reasonableness and whether the respondents' post-hoc justifications invalidate the original refusal.
• The second issue involves the applicants' request for an extension of time to launch the review application. The court evaluates if the respondents' repeated delays in decision-making and non-compliance with prior court orders justify extending the statutory period under the Promotion of Administrative Justice Act. Factors include the respondents' obstruction of the process and the potential prejudice to the applicant if the extension is denied.

Holdings

• The court extended the 180-day period for the review application in terms of section 9(2) of the Promotion of Administrative Justice Act 3 of 2000, considering the interests of justice due to the respondents' repeated non-compliance with prior court orders.
• The MEC for Co-operative Governance and Traditional Affairs, Eastern Cape, was ordered to pay the costs of the application, as the respondents' refusal to recognize the first applicant and subsequent non-compliance with court orders were found to be irrational and unlawful.
• The Premier was directed to refer the matter to the Mbolekwa Royal Family for reconsideration and resolution under s 23(5) of the Eastern Cape Traditional Leadership and Governance Act 1 of 2017, as the respondents failed to comply with their statutory obligations and the court order to recognize the first applicant as Chief of Governors Drift Administrative Area.

Remedies

• The Premier is ordered to refer the matter to the Mbolekwa Royal Family for reconsideration and resolution in accordance with section 23(5) of the Eastern Cape Traditional Leadership and Governance Act 1 of 2017.
• The 180-day period is extended under section 9(2) of the Promotion of Administrative Justice Act 3 of 2000.
• The MEC for Co-operative Governance and Traditional Affairs, Eastern Cape, is ordered to pay the costs of the application.

Legal Principles

• The court applied judicial review principles under PAJA to assess the respondents' decision as irrational and unlawful, citing failure to consider relevant documents and statutory compliance.
• The court ordered the MEC to pay costs, applying principles that hold the state accountable for procedural delays and failures in administrative justice.
• Respondents argued the court's intervention would breach separation of powers, but the court emphasized correcting unlawful administrative decisions as its constitutional duty.

Precedent Name

• Democratic Alliance v President of South Africa and Others
• Zuma v Democratic Alliance and Others
• Van Wyk v Unitas Hospital and Another
• University of The Western Cape and Others v Member of Executive Committee for Health and Social Services and Others
• National Lotteries Board v South African Education and Environment Project
• Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others
• Littlewood and Others v Minister of Home Affairs and Another

Cited Statute

• Traditional Leadership and Governance Framework Act 41 of 2003
• Eastern Cape Traditional Leadership and Governance Act 1 of 2017
• Promotion of Administrative Justice Act 3 of 2000
• Constitution of South Africa

Judge Name

Passage Text

• [39] The respondents failed to refer the matter to the Royal Family in terms of s 23(5) (d) of the EC-TLG Act. The word 'must' in s 23(5) (d) is mandatory. The only reasonable conclusion that can be reached in this regard is that the Premier and/or the MEC failed to comply with a prescribed legislative procedure which renders the impugned decision reviewable.
• [56] The respondents' different reasons proffered in the answering affidavit are an attempt to justify the impugned decision. I therefore reject them and will not deal with them in this judgment.
• [37] In Democratic Alliance v President of South Africa and Others⁶ Yacoob ADCJ, as he then was, held: '[74] This evidence too, reflected in the Report of the Public Service Commission, must have been known to the Minister and was ignored. The decision to ignore and the advice to the President to ignore relevant indications of dishonesty that could detract from the credibility,'