Mphephu-Ramabulana and Another v Mphephu and Others

This matter arose from a dispute over the leadership of the VhaVenḓa Community between descendants of the Mphephu-Ramabulana Royal Family. In 2012, the President recognised Khosikhulu Mphephu-Ramabulana as King of VhaVenḓa based on an identification decision by the Royal Family Council. Princess Masindi Mphephu challenged this, claiming she should be Queen. She brought review proceedings in the High Court, which dismissed her application. The Supreme Court of Appeal overturned this, finding both the Royal Family Council's identification decision and the President's recognition decision were unlawful, unconstitutional and invalid on multiple PAJA grounds, including that: the President relied on the wrong legislation (Framework Act instead of Framework Amendment Act); the Royal Family Council was improperly constituted; and gender discriminatory criteria were applied. The SCA remitted the matter to the High Court but stayed the effect of setting aside the recognition pending final determination. The applicants then sought leave to appeal to the Constitutional Court (significantly out of time), while Ms Mphephu cross-appealed regarding costs and the stay order.

• Whether condonation should be granted for the late filing of the application for leave to appeal
• Whether the Supreme Court of Appeal erred in upholding the appeal after finding prescription on certain claims
• Whether the stay order granted by the Supreme Court of Appeal was a just and equitable remedy under section 172(1)(b) of the Constitution
• Whether the costs order of the Supreme Court of Appeal was appropriate in light of the Biowatch principle
• Whether punitive costs should be awarded against the applicants

1. Condonation refused in main application 2. Main application dismissed 3. Condonation granted for cross-appeal 4. Leave to cross-appeal granted 5. Cross-appeal upheld in part 6. SCA's order paragraph 1 set aside and replaced with order that appeal is upheld and the President must pay Ms Mphephu's costs in the SCA 7. SCA's order paragraph 3(e) set aside and replaced with order that the President must pay applicants' costs in the High Court 8. SCA's stay order (paragraph 3(f)) set aside 9. President ordered to pay Ms Mphephu's costs in the Constitutional Court

1. When a court finds administrative action unconstitutional and invalid under section 172(1)(a), the default remedy required by the principle of legality is that it must be set aside. A court cannot use section 173 powers to avoid section 172(1) obligations. 2. Where a court exercises remedial discretion under section 172(1)(b) not to give full effect to a declaration of invalidity (through limiting retrospectivity or suspending the declaration), it must carefully consider and provide reasons justifying this in the particular circumstances. The default is full retrospective effect and immediate operation. 3. A stay order preventing effect being given to a declaration of invalidity is only a just and equitable remedy under section 172(1)(b) where cogent reasons are provided. Such an order must serve the purposes of affording administrative justice to the prejudiced party and upholding the rule of law. 4. The Biowatch principle applies in constitutional matters involving challenges to State administrative action: where a private litigant achieves substantial success in vindicating constitutional rights against the State, the State must pay costs, even if the State did not actively oppose the proceedings and even where private parties contested the matter inter se. 5. Condonation for late filing requires: reasonable explanation for the delay, consideration of its extent, assessment of prejudice to administration of justice and other litigants, and prospects of success. Inordinate delay with inadequate explanation will result in refusal of condonation even in constitutional matters.

The Court made observations about: (1) the importance of efficient resolution of traditional leadership disputes given their impact on communities - noting this matter had already taken over 8 years; (2) the inappropreness of using the Covid-19 pandemic opportunistically to justify delays that occurred well before the pandemic; (3) that while the section 173 power to regulate proceedings is broad, it is not boundless and cannot be used to circumvent constitutional obligations under section 172; (4) that determining customary law and applying it in appropriate cases falls within courts' jurisdiction under section 211 of the Constitution; and (5) the recognition that "heavy is the head that wears the crown" - acknowledging the significant responsibilities and burdens of traditional leadership while emphasizing these must be exercised lawfully and constitutionally.

This case clarifies important principles regarding: (1) the consequences of declarations of constitutional invalidity and administrative unlawfulness, reaffirming that the default position under the principle of legality is that invalid administrative action must be set aside, and courts cannot use section 173 powers to circumvent section 172(1) obligations; (2) the limited circumstances in which stay orders are appropriate following findings of invalidity - courts must provide cogent reasons justifying deviation from full effect being given to invalidity declarations; (3) the application of the Biowatch costs principle in constitutional litigation involving challenges to State administrative action, even where the primary dispute is between private parties; and (4) the stringent requirements for condonation applications, particularly where delay is inordinate and explanations are inadequate. The judgment reinforces constitutional supremacy and the rule of law in the context of traditional leadership disputes, affirming that administrative decisions in this sphere are subject to constitutional review and PAJA.