Kgoshi Ngoako Isaac Lebogo and Another v Headman Enos Matome Kobe and Others

The first appellant, Kgoshi Ngoako Isaac Lebogo, was recognized as senior traditional leader of the Bahananwa Traditional Community in April 2011, replacing Mr Tlabo Joseph Lebogo. The community was divided into two factions, with the first to thirteenth respondents (headmen and headwomen) aligned with Mr Tlabo Lebogo. On 17 March 2013, a meeting of the Bahananwa royal family and Traditional Council resolved to remove the headmen/women respondents from their positions. This decision was communicated to the Premier on 29 March 2013, who removed them and withdrew their certificates of recognition on 29 July 2013, appointing new headmen/women in their place. The headmen/women respondents were personally served with notice on 23 August 2013. They only instituted a review application on 11 February 2019, nearly six years after the impugned decision, seeking reinstatement with retrospective benefits. During the intervening period, they participated in various meetings attempting to resolve the matter internally and awaited reports from investigative committees.

• Whether section 21 of the Traditional Leadership and Governance Framework Act 41 of 2003 applied to require exhaustion of internal remedies before approaching a court
• Whether the review application was brought with undue delay in terms of section 7(1) of PAJA
• Whether condonation for the late filing of the review application was necessary
• Whether condonation should have been granted in the interests of justice
• Whether there were reasonable prospects of success on the merits of the review application

The appeal was upheld with costs, including the costs of two counsel where so employed. The order of the full court was set aside and replaced with an order dismissing the appeal with costs.

The binding legal principles established are: (1) Section 21 of the Traditional Leadership and Governance Framework Act 41 of 2003 does not apply to disputes where the Premier's administrative decision is being challenged, as it would be absurd to have the Premier simultaneously as both party to and resolver of the dispute. (2) A review application under PAJA must be instituted within 180 days of the date on which the person became aware or ought reasonably to have become aware of the administrative action, and delays significantly exceeding this period require condonation. (3) An application for condonation requires a full, honest and reasonable explanation covering the entire period of delay. (4) The interests of justice test for condonation requires consideration of multiple factors including the nature of relief sought, extent and cause of delay, effect on administration of justice, reasonableness of explanation, and prospects of success. (5) There is only one royal family per traditional community as defined in section 1 of the Limpopo Traditional Leadership and Institutions Act, being 'the ruling family within a traditional community', not multiple village royal families. (6) Where the Premier has made a decision and appointed replacement traditional leaders, he is functus officio and cannot participate in an internal dispute resolution mechanism regarding that decision.

The court made several non-binding observations: (1) Undue delay should not be tolerated as it can prejudice respondents, weaken a court's ability to consider the merits of a review, and undermine the public interest in bringing certainty and finality to administrative action. Courts should exhibit vigilance, consideration and propriety before overlooking a late review. (2) Subjective sympathy for a litigant should not be conflated with the objective test of the interests of justice when considering condonation. (3) The lack of finality caused by granting condonation after such an inordinate delay would cause prejudice to the institution of traditional leadership in the Bahananwa community. (4) The court noted that the headmen/women respondents' argument that the 180-day period only commenced when they were provided with full reasons in terms of rule 53 was without merit. (5) The court observed that granting condonation in the interests of justice does not create an unfettered judicial power and must be decided judicially upon the facts and circumstances of the particular case.

This case is significant in South African traditional leadership and administrative law for several reasons: (1) It clarifies that section 21 of the Traditional Leadership and Governance Framework Act does not apply when the Premier's decision is being challenged, following the principle established in Tshivhulana Royal Family that the Premier cannot be both party to and resolver of a dispute. (2) It emphasizes the importance of the 180-day time period prescribed by section 7(1) of PAJA for instituting judicial review proceedings, and the strict approach courts should take to delays exceeding this period. (3) It confirms that delays of nearly six years will not be condoned absent compelling reasons, as such delays undermine finality and the proper administration of justice. (4) It reinforces that there is only one royal family per traditional community as defined in the Limpopo Traditional Leadership and Institutions Act, not multiple 'village royal families'. (5) It demonstrates the application of the interests of justice test for condonation applications, requiring consideration of factors including nature of relief sought, extent and cause of delay, effect on administration of justice, reasonableness of explanation, and prospects of success.