Thobejane and Others v Premier of the Limpopo Province and Another

The appellants launched a review application in the Limpopo High Court seeking to set aside the decision of the Premier of Limpopo and the MEC for Traditional Affairs not to recognize them as traditional leaders of the Tjatje Community. The first appellant sought recognition as Kgoshigadi (Chieftainess), the second to fourth appellants as headmen, and the fifth appellant as a headwoman. The respondents raised a preliminary point of non-joinder, arguing that the Commission on Traditional Leadership Disputes and Claims and the Marota-Mohlaletsi Traditional Council should have been joined. On 24 April 2019, Semenya J dismissed the preliminary point. The parties then argued the merits, after which the judge reserved judgment. On 17 May 2019, the same judge delivered judgment in which she revisited the preliminary point and upheld it, striking the application from the roll with costs. The judge granted leave to appeal to the Supreme Court of Appeal. The first appellant died after the judgment.

• Whether a court can reverse its own final order on a preliminary point after having dismissed it and heard arguments on the merits
• Whether a court becomes functus officio after delivering a final order
• Whether the order of 24 April 2019 dismissing the preliminary point was final in effect
• Whether the Supreme Court of Appeal had jurisdiction to determine the merits of the review application when the high court had not pronounced on the merits
• Whether a substitution order should be made instead of remitting the matter to the high court

1. The appeal is upheld with no order as to costs. 2. The order of the high court dated 17 May 2019 is set aside. 3. The matter is remitted to the high court to determine the merits of the review application.

Once a court has pronounced a final judgment, it becomes functus officio and has no power to set aside or alter that order. An order is final in effect if it: (1) is final and not susceptible to alteration by the court that made it; (2) is definitive of the rights of the parties; and (3) disposes of at least a substantial portion of the relief claimed in the main proceedings (including relief claimed by the defendant/respondent in the form of preliminary points). The Supreme Court of Appeal's jurisdiction is not triggered where the high court has not given judgment or made an order on the substantive issues sought to be argued on appeal. A court exercising review powers should only make a substitution order in exceptional circumstances, which requires consideration of whether the court is in as good a position as the administrator to make the decision and whether the administrator's decision is a foregone conclusion, along with other relevant factors such as delay, bias or incompetence.

The court commented that from a cursory reading of the papers, there were issues requiring further clarification, including the position of Mr Nthobeng Thobejane, the community's current headman who was said to be mentally challenged but continued to receive a stipend - his position would need clarification and he might need to be joined as a party. The court noted that the death of the first appellant after the judgment should have no effect on the remittal order, as if the high court determined she was entitled to be appointed as Kgoshigadi, her natural successor would be substituted. The court expressed strong criticism of the high court's decision to grant leave to appeal to the SCA, stating there was no discernible reason why such leave was granted as no controversial legal principle was involved, and that inappropriate granting of leave increases litigants' costs and results in truly deserving cases having to compete for a place on the court's roll - this practice must be deprecated.

This case reinforces the fundamental principle that a court becomes functus officio once it has pronounced a final judgment and cannot thereafter set aside or alter its own final order. It clarifies the application of the Zweni test for determining whether an order is final in effect, including that relief claimed by a defendant/respondent in the form of preliminary points constitutes 'relief claimed' for purposes of the third Zweni attribute. The case also confirms the limits of the Supreme Court of Appeal's jurisdiction - it cannot determine issues that have not been decided by the high court as a court of first instance, as this would constitute an impermissible usurpation of the high court's function. The judgment provides guidance on when substitution orders should be made under section 8(1)(c)(ii)(aa) of PAJA, emphasizing that these should only be made in exceptional circumstances. The case also serves as a reminder to high courts to exercise caution when granting leave to appeal to the SCA and to reserve such leave for cases involving controversial legal principles or matters truly deserving of the appellate court's attention.