ConCourt rules in favour of headman whose case was dismissed incorrectly

The Constitutional Court on Monday ordered that a review application by a headman in Limpopo be remitted back to the high court in Thohoyandou for consideration of the merits of the application.

The case involves the refusal by the high court in 2019 to hear an application by Masenyani Thompson Rikhotso.

He was challenging his removal as headman of Nsavulani, one of the villages under the Mahumani traditional community in Limpopo.

Rikhotso had in 2017 applied to the high court to review and set aside the decision taken by the premier of Limpopo in March 2013 to withdraw his certificate of recognition and appointment as headman.

The premier took the decision after being requested by the Mahumani royal family.

The Mahumani royal family decided to remove Rikhotso after allegations that he had committed serious misconduct between 2010 and 2011, which related to his duties as headman.

Rikhotso was invited to attend a disciplinary enquiry to answer to the charges.

After failing on three occasions to honour these invitations, the royal family, which had appointed Rikhotso in 2003, resolved to remove him as headman.

When Rikhotso brought his review application four years later, he sought condonation for his late review.

The Promotion of Administrative Justice Act (Paja) provides that any proceedings for judicial review must be instituted after a period not longer than 180 days. Section 9 of Paja also provides that the period of 180 days may be extended by agreement between the parties, or by a court concerned.

On November 27 2018, the high court in Thohoyandou granted Rikhotso's Paja condonation application on an unopposed basis. On January 26 2019, the same judge who granted the condonation delivered the judgment on the application.

The judge said there had been a separation of issues by agreement, and that the "merits of the review had been parked aside pending" this court's decision on the preliminary points raised by the premier.

A number of preliminary points raised were abandoned at the hearing, and the remaining one was prescription.

The point raised was that more than three years had lapsed before the launch of the review application. The high court, after considering the reasons advanced by Rikhotso for the delay, found that the explanation was not reasonable.

It held that proceeding with the review application would be academic.

After the high court refused his review application, Rikhotso sought leave to appeal, which was dismissed with costs. His petition to the Supreme Court of Appeal was also dismissed with costs in September 2019. He then approached the Constitutional Court.

In its judgment on Monday, the ConCourt said Rikhotso's delay had been condoned by the high court in terms of section 9 (2) of Paja.

"The high court could not alter and, even less, revoke that final decision," justice Steven Majiedt wrote in a judgment, whereby all judges concurred.  

He said it was doubtful whether the review sought by Rikhotso was a "debt" as envisaged in the Prescription Act.

"The high court erred in effectively overruling itself in finding that the 'prescription' or 'superannuation' point must be upheld. Its order must be set aside and the matter remitted for the consideration of the merits of the review application," Majiedt held.

He also set aside the legal costs orders.

He ordered the premier and the Limpopo co-operative governance, human settlements and traditional affairs MEC to bear the costs of the applications for leave to appeal in the Constitutional Court, the high court and the Supreme Court of Appeal.

"That is so because they raised the prescription point in the high court, with the full knowledge that the court had already granted the applicant condonation barely two months earlier," Majiedt said.

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