Case  CCT79/20
[2021] ZACC 01

Judgement Date: 25 January 2010

Post Judgment 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 25 January 2021 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against the whole judgment and order of the High Court of South Africa, Limpopo Local Division, Thohoyandou. The High Court had dismissed an application to review and set aside the decision of the Premier of Limpopo Province, to withdraw the certificates of recognition and appointment of Mr Masenyani Thompson Rikhotso (Mr Rikhotso) as the headman of the Nsavulani ward. The applicant is Mr Rikhotso, and the respondents are the Premier of Limpopo Province (the Premier), the MEC for Co-operative Governance, Human Settlements and Traditional Affairs in Limpopo, the District Manager of the Mopani Department of Traditional Affairs, the Mahumani Traditional Council, and the Mahumani Royal Family.

Mr Rikhotso was the duly appointed headman of the Nsavulani ward from 2003. He was charged with misconduct by the Mahumani Royal Family, following allegations that between 2010 and 2011 he committed acts of serious misconduct relating to his duties as headman of the ward. He failed to attend disciplinary enquiries to answer the charges on three successive occasions. The Mahumani Royal Family therefore resolved to remove Mr Rikhotso from office in terms of section 13 of the Limpopo Traditional Leadership and Institutions Act 6 of 2005 (the Act). They communicated their decision to the Premier, who withdrew Mr Rikhotso’s certificates of recognition and appointment as headman of Nsavulani on 8 March 2013, also in terms of section 13 of the Act.

On 18 September 2017, more than four years later, Mr Rikhotso launched an application in the High Court to review and set aside the Premier’s decision. The review application was based on the Promotion of Administrative Justice Act 3 of 2000 (PAJA), and was accompanied by an application for condonation of the delay in terms of section 9(2) of PAJA. Condonation was granted by the High Court on 27 November 2018. However, when the same Court delivered judgment on the merits on 16 January 2019, it held that the principle of legality requires that an application for review be instituted within a reasonable time. It accordingly dismissed the application on the basis that Mr Rikhotso’s claim had prescribed, as more than three years had passed and the explanation for the delay was not reasonable. Further, that Court held that the application lacked prospects of success. Displeased with the decision of the High Court, Mr Rikhotso sought leave to appeal, but this was denied. He then sought leave to appeal in the Supreme Court of Appeal, but was again denied. He then approached the Constitutional Court, arguing that his constitutional right to just administrative action has been infringed.

In a unanimous judgment penned by Majiedt J, the Constitutional Court held that the High Court had not been competent to rule on the matter of prescription, as it had already granted condonation for the delay. The High Court was functus officio with respect to this point, meaning that it had already exercised its jurisdiction and no longer had authority over the issue. In any case, the Court commented – without deciding – that it is doubtful that prescription applies to constitutional obligations.

Another issue considered by the Court was the cost order granted by the High Court against Mr Rikhotso. The Constitutional Court reversed this order, relying on the Biowatch principle. The Court held that Mr Rikhotso was genuinely vindicating his constitutional right to just administrative action, and the state respondents should therefore pay the costs of the application. Further, the state respondents raised the prescription point in the High Court, despite knowing that the Court had granted condonation barely two months earlier, and conceded in their written submissions that the High Court had erred in upholding the delay point.

In the result, the Court ordered that the order of the High Court be set aside. Further, it remitted the matter to the High Court for consideration of the merits of the application, and ordered the first, second and third respondents (as organs of state) to pay the costs of the applications for leave to appeal.

The Full judgment  here