On 5 December 2013, Mr Nelson Rolihlahla Mandela (“Mr Mandela”) passed on and left behind a Last Will and Testament (the “Will”) in which he bequeathed his property to his Family Trust. This property was donated to Mr Mandela by the Minister of Land Affairs (the “Third Respondent”) during the time when a final decree of divorce was granted between Mr Mandela and Nomzamo Winifred Zanyiwe Madikizela Mandela (the “Appellant”) in respect of their civil marriage that existed prior to March 1996. It is important to note that the final decree of divorce is silent in respect of the property rights of the parties.
During October 2014, the Appellant issued review proceedings in which she sought an order declaring the Minister’s decision to donate the property to be null and void; alternatively, reviewing the Minister’s decision, setting it aside and obtaining ancillary relief. The Appellant contended that she was not aware of the occurrence of the said donation made by the Minister, as she only became aware of same in August 2014, after attaining a copy of the Will. Thus, the Appellant intended to assert her alleged right to occupy the property by virtue of the fact that her customary marriage to Mr Mandela was not dissolved. The review application was dismissed with costs by the Eastern Cape Local Division High Court (the “court a quo”), on the basis that there was unreasonable delay in instituting the proceedings, which resulted in severe prejudice to the Respondents.
The Appellant proceeded to apply for special leave to appeal, which was later granted in January 2017. In light of the administrative action of the Minister’s decision being made in 1997, the dispute was to be adjudicated and considered in terms of common law principles, as the decision was taken long before the coming into effect of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).
The question of costs is considered in terms of the Biowatch case, in the instance where a litigant is unsuccessful against the State. The case confirms that unsuccessful litigants should not be discouraged to approach the court in good faith, to assert constitutional rights, with the fear of costs being awarded against them. The Court stated that this must be borne in mind when determining the nature of the Appellant’s claim.
The Court considered the issue of the potential prejudice which may arise if the decision of the Minister is set aside, by weighing up the parties’ present position against the position the parties would have been in, had the proceedings been instituted within a reasonable time.
The Court agreed with the submission made by the Respondents in that a reasonable person in the position of the Appellant would have asserted her right to the property before the death of Mr Mandela. A reasonable person in the Appellant’s shoes would have regarded recognition of her rights to the property as critical in the divorce proceedings. However, almost 17 years had gone by without the Appellant taking any steps to assert such rights. The Appellant’s delay in claiming her rights, after Mr Mandela’s death would be extremely prejudicial to his estate and the heirs, as the late Mr Mandela’s version of events were not available.
When initiating review proceedings, precedent indicates that it is both necessary and in the public interest that finality of judicial, administrative and litigation decisions in general, be determined within a reasonable time. The long-standing rule that courts have the power and discretion to refuse a review proceeding is twofold:
- failure to institute a review within a reasonable time may be prejudicial to the interests of the respondent(s); and
- the public interest in the finality of an administrative decision, which ensures the ordinary exercise and functioning of administrative law.
It was held that the court a quo correctly concluded that such unreasonable delay on the part the Appellant should not be condoned. This is supported by the common law rule that review proceedings ought to be initiated without undue delay. Consequently, the matter at hand indicates that the Appellant’s excessive undue delay and lack of an acceptable explanation for such, violates this common law rule. Accordingly, the Appeal against the merits was upheld.
The issue of costs was considered in light of the Biowatch case, in that the Appellant was challenging the legality of the Minister’s decision to donate the said property to the late Mr Mandela, implicating the constitutional principle of legality and her right to property. The delay, although unreasonable and without a valid explanation, does not necessarily mean that the litigation is frivolous or vexatious. Accordingly, the appeal against the court a quo’s cost order was upheld.
The defence of unreasonable delay is still valid in terms of our common law and will be applied where Respondents face potential unreasonable prejudice.
Written by Katya Oberzhitsky, Candidate Attorney and supervised by Jonathan Salant, Associate, 1 March 2018.