THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 131/17

In the matter between:

NOMZAMO WINIFRED ZANYIWE
MADIKIZELA MANDELA

APPELLANT

and

THE EXECUTORS ESTATE LATE
NELSON ROLIHLAHLA MANDELA
FIRST RESPONDENT

THE REGISTRAR OF DEEDS, MTHATHA
SECOND RESPONDENT

MINISTER OF LAND AFFIARS FOR
THE REPUBLIC OF SOUTH AFRICA
THIRD RESPONDENT

THE PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA

FOURTH RESPONDENT

THE NELSON MANDELA FAMILY
TRUST

FIFTH RESPONDENT

THE MASTER OF THE HIGH COURT,
SOUTH GAUTENG

SIXTH RESPONDENT

GRACA MACHEL

SEVENTH REPONDENT

EBOTWE TRIBAL AUTHORITY
EIGHT RESPONDENT

ZWELIDUMILE MBANDE

NINTH RESPONDENT

Neutral citation: Mandela v The Executors, Estate Late Nelson Rolihlahla
Mandela & others (131/17) [2017] ZASCA02 (19 January
2018)

Coram:
Shongwe AP and Swain and Mathopo JJA and Mokgohloa and
Rogers AJJA

Heard:
16 November 2017

Delivered: 19 January 2018

Summary: Administrative law – common law review – unreasonable delay –
assumption of prospects of success on merits – outweighed by potential for
severe resultant prejudice – refusal of condonation – whether court justified in
mulcting appellant with costs.

ORDER
________________________________________________________________

On appeal from: The Eastern Cape Local Division, Mthatha (Makgoba JP and
Van der Merwe and Teffo JJ sitting as court of first instance):
1 The appeal against the costs order granted by the court a quo against the
appellant in favour of the third respondent is upheld.
2 The costs order granted by the court a quo against the appellant in favour of
the third respondent is set aside and substituted with the following:
‘As regards costs between the appellant and the third respondent, each party
should bear its own costs’.
3 The appeal against the dismissal of the review application is dismissed.
4 The appellant is ordered to pay the first respondent’s costs including costs of
two counsel.

JUDGMENT
________________________________________________________________

Shongwe AP (Swain and Mathopo JJA and Mokgohloa and Rogers AJJA
concurring)
[1] This appeal, with special leave of this court, raises the question whether
the court a quo was correct to dismiss the appellant’s review application with
costs on the basis that she delayed unreasonably in launching the application
and that the delay should not be condoned. It also raises the question of the
relevance of the Biowatch case on costs, where a litigant is unsuccessful against

the State. (Biowatch Trust v Registrar, Genetic Resources & others 2009 (6) SA
232 (CC)).

[2] On 16 November 1997, the third respondent, the Minister of Land Affairs
for the Republic of South Africa (the Minister), took a decision to donate ‘Lot,
Kwa-Madiba (portion of A.A. No. 20 called QUNU) situated in the
Administrative District of Umtata Province of the Eastern Cape’, in extent 96,
8959 hectares (the property), to Mr Nelson Rolihlahla Mandela (Mr Mandela),
the late former President of the Republic of South Africa. This donation took
place after a final decree of divorce had been granted on 19 March 1996 in
respect of a civil marriage that existed between the late Mr Mandela and Mrs
Nomzamo Winifred Madikizela Mandela, the appellant. On 5 December 2013
Mr Mandela passed on and left a will in which he bequeathed the property to
the Nelson Rolihlahla Mandela Family Trust (the Trust) in the following terms:
‘I bequeath the Qunu Property and the movable assets of my estate in or on it at the time of
my death, to THE NRM FAMILY TRUST. It is my wish that the trustees of THE NRM
FAMILY TRUST administer the Qunu Property for the benefit of the MANDELA family
and my third wife and her two children, MALENGANE MACHEL and JOSINA MACHEL.
The Qunu Property should be used by my family in perpetuity in order to preserve the unity
of the MANDELA family.’
The ‘third wife’ in the above clause is a reference to Ms Graca Machel whom
Mr Mandela married on 18 July 1998. She was cited as the seventh respondent.

[3] On 14 October 2014 the appellant instituted review proceedings in which
she sought an order declaring the Minister’s decision of 16 November 1997 to
donate the property as null and void; alternatively, reviewing and setting aside
that decision and ancillary relief. She also sought an order declaring as invalid
the legacy set out in clause 4.5.3 of the will of the late Mr Mandela in respect of
the property in question.

[4] The review application was heard by the Eastern Cape Local Division of
the High Court, Mthatha (Makgoba JP and Van der Merwe and Teffo JJ) and
dismissed with costs including the costs of two counsel. The subsequent
application for leave to appeal was also dismissed with costs. Aggrieved by this
decision, the appellant applied to this court for special leave to appeal, which
was granted on 20 January 2017.

[5] The first respondent, the executors of the estate late NR Mandela (the
executors) and the Minister oppose the appeal (I shall hereafter refer to the
executors and the Minister as ‘the respondents’). The other respondents abide
the decision of this court. The court a quo dismissed the review application
mainly on the basis that there was an unreasonable delay which resulted in
severe prejudice to the respondents. It did not extensively deal with the merits
of the review but made reference thereto when considering whether to condone
the appellant’s unreasonable delay in launching the review proceedings and
whether the appellant had reasonable prospects of success on the merits. It
concluded that almost 17 years had gone by without the appellant doing
anything to claim or assert her rights. The delay was therefore inordinate with
no acceptable explanation as to why she took so long to assert her rights.

[6] The appellant contended that she was not aware of the donation made by
the Minister to Mr Mandela and only became aware of it during August 2014
after obtaining a copy of Mr Mandela’s will. Until then, so she says, she did not
know that Mr Mandela was the registered owner of the property or that he
thought himself entitled to dispose of it. She also contended that the respondents
did not dispute that she lacked knowledge of the donation. She further

contended that she is the rightful holder of the right to occupy the property, or at
least, the small portion initially allocated to her by the acting paramount chief
Daliguba Joyi, in consultation with the local community. This, she contended,
took place around 1989 and 1990, while Mr Mandela was incarcerated on
Robben Island. She claims the property on the basis that she is entitled to the
property by virtue of the fact that her customary marriage to Mr Mandela was
not dissolved, notwithstanding the fact that their civil marriage had been
dissolved by the issue of a final decree of divorce. Thus she personally acquired
the property in accordance with the custom of the Abathembu clan, to which
both she and Mr Mandela belonged. She contended that until and unless her late
husband claimed his lobola back, the customary marriage remained extant.

[7] A brief factual background, which is not disputed, is that Mr and Mrs
Mandela were married in terms of customary law in 1958. Subsequently on 14
June 1958 they concluded a civil marriage out of community of property. In
1964 Mr Mandela was convicted and sentenced to life imprisonment and
eventually released in February 1990. He built a home in Qunu (on the
property), between 1993 and 1995. At this stage the Qunu property was only
about nine hectares in extent. On 13 April 1992 Mr Mandela publicly declared
that his marriage had broken down irretrievably and subsequently instituted
divorce proceedings. As stated earlier a final decree of divorce was granted on
19 March 1996. The appellant contested the divorce and filed a counterclaim. It
is not clear from the evidence what happened to the counterclaim. The final
order of divorce is silent regarding the proprietary rights of the parties.

[8] It must be made clear from the outset that the administrative action and
the impugned decision must be adjudicated in terms of the common law and not

in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The
impugned decision was taken in 1997, long before the coming into effect of
PAJA. In Associated Institutions Pension Fund & others v Van Zyl & others
2005 (2) SA 302 (SCA) para 46, it was held that since PAJA only came into
operation on 30 November 2000, after the impugned decision in that case was
taken, the validity of the defence of unreasonable delay had to be considered
with reference to common law principles. Indeed, counsel for the appellant
correctly conceded that the provisions of PAJA were not applicable to the
present dispute. In Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Tourism & others 2004 (4) SA 490 (CC); 2004 (7) BCLR (CC) in
para 22 the Constitutional Court remarked that ‘the extent to which the common
law remains relevant to administrative review will have to be developed on a
case-by-case basis as the courts interpret and apply the provisions of PAJA and
the Constitution.’ (See also Pharmaceutical Manufacturers Association of South
Africa & another: In re Ex parte President of the Republic of SA & others 2000
(2) SA 674 (CC); (2000) (3) BCLR 241)).

[9] In Van Zyl para 46-47, it was pointed out that it is desirable and in the
public interest that finality be reached within a reasonable time, in respect of
judicial and administrative decisions and litigation in general. It was a long-
standing rule that courts have the power, as part of their inherent jurisdiction to
regulate their own proceedings, to refuse a review application if the aggrieved
party has been guilty of unreasonable delay in initiating the proceedings. The
rationale for the long-standing rule is twofold: First, the failure to bring a review
within a reasonable time may cause prejudice to the respondent. Second, there is
a public interest element in the finality of administrative decisions and the
exercise of administrative functions. The application of the rule requires

consideration of two questions. Namely, was there an unreasonable delay?  If
so, should the delay in all the circumstances be condoned?

[10] In Van Zyl para 48, it was stated that the reasonableness or
unreasonableness of a delay is dependent on the facts and circumstances of each
case. It is a matter of a factual enquiry upon which a value judgment is called
for in the light of all the relevant circumstances, including any explanation that
is offered for the delay. It is an investigation into the facts of the matter in order
to determine whether, in all the circumstances of the case, the delay was
reasonable. In Gqwetha v Transkei Development Corporation Ltd & others
2006 (2) SA 603 (SCA) para 24, it was pointed out that a material fact to be
taken into account in making that value judgment was the nature of the
challenged decision, as not all decisions have the same potential for prejudice,
which may result from their being set aside. It was emphasised in Van Zyl that
although this involved the exercise of a value judgment, it was not to be equated
with the judicial discretion involved in the next question if it arose, namely,
whether a delay which has been found to be unreasonable should be condoned.

[11] I turn to consider whether the court a quo correctly concluded that the
appellant had unduly and unreasonably delayed in launching the application for
review.  The court a quo having referred to the evidence of the appellant, which
was not disputed by the respondents, that she only became aware of the
challenged decision when she became aware of the contents of the will in
August 2014, phrased the question to be answered as follows, ‘when a
reasonable person in the shoes of Mrs Mandela would have acquired knowledge
of the Minister’s decision?’

[12]   In Van Zyl para 51 the learned Judge observed that:
‘In my view there is indeed a duty on the applicants not to take an indifferent attitude but
rather to take all reasonable steps available to them to investigate the reviewability of
administrative decisions adversely affecting them as soon as they are aware of the decision.
Whether the applicants in a particular case have taken all reasonable steps available to them
in compliance with this duty, will depend on the facts and circumstances of each case’.
(Emphasis added.)
(See also Drennan Maud and Partners v Pennington Town Board 1998 (3) SA
200 (SCA)).

[13] The present case may be regarded as distinguishable from this passage
because here there was no unreasonable delay from the date on which the
appellant claims to have learnt of the impugned decision. In my view, however,
the same principle applies where there are circumstances which should have
alerted an applicant to the existence of a decision adverse to her rights.
Reasonable vigilance of one’s rights is required. The failure to investigate such
circumstances has the same potential to prejudice other parties as a failure to act
promptly after learning of the adverse decision

[14]   The court a quo decided that a reasonable person in the position of the
appellant would have regarded recognition of her rights to the property as a
critical issue in the divorce proceedings. Such a reasonable person would have
asserted the rights to the property during the divorce proceedings and would
accordingly have uncovered the steps taken to donate the land to Mr Mandela.
However, as correctly pointed out by the appellant the decision to dispose of the
property to Mr Mandela was only taken in November 1997, and the civil
divorce took place in 1996. Nevertheless, the appellant’s conduct is not
consistent with that of a reasonable person who would have taken steps to

establish the outcome of her counterclaim and the fate of her claim to the
property.

[15]    In addition, the court a quo pointed out that the house on the property
was built during the period from 1993 to 1995 and the statement by the
appellant that she contributed to this was disingenuous as no proof of the
contribution she made was produced. The respondents point out that the
property on which the house was located was greatly increased in size.  On 5
January 1996 Chief Mtirara wrote a letter to the magistrate in Mthatha stating
that the extension of the original site of Mr Mandela from nine hectares to
approximately 101.5 hectares carried the approval of the relevant tribal
authority.  In addition, the executors point out that the allotment of the property
to Mr Mandela was done publicly where King Dalindyebo and other local chiefs
were present representing the Ebotwe Tribal Authority. In response Mr Mandela
donated a sum of R150 000 to the residents of Qunu to be used for a community
project. This is borne out in a letter dated 10 November 1997 from Sangoni
Incorporated, the attorneys who represented Mr Mandela.

[16]   It appears that after his divorce Mr Mandela conducted himself as the
owner of the house, without any recognition of any rights of the appellant. In
addition, the property was vastly extended and improved from the resources of
Mr Mandela. At some stage after the Qunu property was registered in Mr
Mandela’s name on 24 February 1998, extensive building was done to construct
a much larger home than the one built during 1993-1995. Precisely when this
occurred is unclear but the executors included in their answering papers a
resolution by the NRM Family Trust dated 7 October 2002 in terms of which
the trust resolved to enter into a building contract to the value of R4 548 600 for

the construction of a residence on Qunu. This, in my view, should have raised
the appellant’s eyebrows as regards the land itself. She could hardly have
thought, after the divorce, that Mr Mandela would erect a mansion for her
benefit. Indeed, the uncontested evidence is that even at the time of the divorce
Mr Mandela and the appellant had not spoken for several years. The executors
raised the same issues in order to show that there was an unreasonable delay and
that a reasonable person in the shoes of the appellant would have reacted swiftly
to assert her alleged right to the property. I therefor agree with the court a quo
that there was an unreasonable delay by the appellant in instituting the review
proceedings. (See Gqwetha para 49 and Khumalo & another v MEC for
Education, KwaZulu-Natal [2013] ZACC 49; 2014 (5) SA 579 (CC) para 48).

[17]   I turn to consider whether the court a quo in the exercise of its discretion
correctly concluded that the unreasonable delay should not be condoned, with
the result that the application for review could not be entertained. Of primary
concern in this inquiry is the inherent potential for resultant prejudice to the
heirs of Mr Mandela if the challenged decision is set aside. In Gqwetha para 23
the majority judgment remarked that:
‘[P]roof of actual prejudice to the respondent is not a precondition for refusing to entertain
review proceedings by reason of undue delay, although the extent to which prejudice has
been shown is a relevant consideration that might even be decisive where the delay has been
relatively slight’.
(See also Wolgroeiers Afslaers v Munisipaliteit van Kaapstad 1998 (1) SA 13
(A) at 38H-42D at 42C).

[18] In Gqwetha paras 33-35, it was pointed out that whether the delay should
be condoned cannot be evaluated in a vacuum, but only relative to the
challenged decision and particularly with the potential for prejudice in mind.

The prospect of setting aside the decision, ie the merits of the case, was not a
material consideration in the absence of an evaluation of what the consequences
of setting aside the decision were likely to be. The prospect (or lack of it) of a
meaningful consequence to the setting aside of an administrative decision,
rather than merely the prospect of the administrative decision being set aside,
might be a relevant consideration to take into account.

[19] The appellant’s challenge to the lawfulness of the decision of the Minister
to donate the property to Mr Mandela and the subsequent transfer and
registration of the property into Mr Mandela’s name, was based upon the
allegation that a formal resolution by the community of Qunu, was not obtained
in respect of the donation of the land to Mr Mandela, as required in terms of s 3
of the Upgrading of Land Tenure Rights Act 112 of 1991. It was also alleged
that the disposal of the property by the Minister was made without complying
with the provisions of the Interim Protection of Informal Land Rights Act 31 of
1996, which required that the informal rights holders consent to the disposal,
before being stripped of their informal rights.

[20]    The Minister however denied these assertions, contending that he had at
his disposal information and documents which formed part of the Record of
Decision, including an internal memorandum from the officials in the Minister’s
office, a resolution from the Ebotwe Tribal Authority authorising the
registration of the deed of grant in respect of the property, and copies of the
Permission to Occupy (PTO) allotment in favour of Mr Mandela dated 5
January 1995 or 1996. Although some of the copies of documents referred to
are illegible, we were told that these are the best copies available. This is the
sort of thing which can happen where a claimant lets the grass grow under her
feet. Counsel for the Minister was at pains to explain the status of the PTO and

suggested that these were issued by the Department of Local Government and
Land Tenure in terms of a Proclamation. The submissions were difficult to
follow. Neither side properly addressed the legislative regime under which the
PTO was purportedly issued. The PTO itself refers to s 3(k) of a Transkeian
Proclamation 10 of 1966 which is not readily available to us and which neither
side furnished to the court. After the hearing the Minister’s counsel provided to
the court a copy of Location Regulations: Unsurveyed Districts: Transkeian
Territories, No 26 of 1936. How these bear on the matter is not self-evident.

[21]  In support of her customary law claim to the property, the appellant says
she believed that she was still married to Mr Mandela in terms of customary law
even after the dissolution of their civil marriage. She contended that Mr
Mandela also believed and lived in accordance with the Abathembu custom.
However, notwithstanding the advice from her mother-in-law that she was
entitled to have her own house, she never asserted her right to have her own
house, to the exclusion of Ms Machel. She alleged that she visited the property
even after the final decree had been granted but at no stage did she protest that
Ms Machel was not entitled to occupy what she claims to be her house. She
gave no particulars as to how often and under what circumstances she visited
the Qunu property. The executors’ evidence indicates that in the main it was
used by Mr Mandela and his third wife, Ms Machel.

[22]    If Mr Mandela lived strictly in accordance with the Abathembu customs,
he would have claimed his lobola back in order to bring the customary marriage
to a final end. But, apparently he did not, because he believed that the marriage
bond between himself and the appellant had been finally put asunder by the
decree of divorce.   Of significance in this regard is what Mr Mandela himself

said in para 22 of his unsigned affidavit in opposing an application for the
postponement of the divorce proceedings:
‘[I]t is correct that it is customary among the Tembus for a person in my position to have
regard to our customs and traditions. I have respected them in the past and will continue to do
so now and in future. However I know of no custom or tradition that deals with the
dissolution of a civil marriage by the courts’. (Emphasis added.)
It is therefore clear that Mr Mandela regarded the decree of divorce as being
determinative of any rights flowing from the marriage concluded between the
appellant and himself. That he did not claim the return of his lobola, is a clear
indication that he regarded the marriage as at an end, in terms of customary law.
In any event, there is very little evidence to prove that the custom of claiming
the lobola back was followed by the wider Abathembu clan.

[23] There are conflicting opinions between the experts called by both parties
as to the effect upon a customary marriage of a decree of divorce. One opinion
confirms the existence of the custom that the customary marriage remains
extant even after the dissolution of the civil marriage (Prof R B Mqeke for the
appellant). The other, Prof D S Koyana for the executors, opines that courts
have expressed themselves clearly (and perhaps somewhat harshly) against the
inclination to import customary marriage rules into civil rites marriages, which
is offensive precisely because the (unpurified) customary marriage pre-1998
was not recognised as a valid marriage.

[24]  In the result the court a quo concluded that the appellant’s prospects of
showing that the customary marriage remained in existence appeared to be
tenuous. As regards the appellant’s claim to the property in reliance upon her
status as the second customary wife of the late Mr Mandela, the court a quo
concluded that the appellant’s prospects of showing that the original site and the
extended site were allocated to her in her personal capacity, were not strong.

The court a quo also found that in the absence of a right to the property, the
appellant may not achieve anything meaningful in reviewing and setting aside
the decision of the Minister. The court a quo therefor refused to grant an order
declaring as null and void, the decision by the Minister to donate the property to
Mr Mandela. The court a quo then dismissed the review application on the basis
that the unreasonable delay of the appellant should not be condoned, regard
being had to the nature and strength of the merits of the application, as well as
the prospects of the appellant achieving anything meaningful, by setting aside
the decision of the Minister.

[25] It should be noted that with regard to the issue of whether the appellant
would achieve anything meaningful by setting aside the decision of the
Minister, although Counsel for the appellant accepted that the appellant and her
children would be entitled to use the property in terms of the provisions of Mr
Mandela's will, as set out above, Counsel stated that the meaningful result for
the appellant if her claim to the property was upheld, would be that she would
then be entitled to exclude Ms Machel from using the property. For reasons
which will become apparent, I find it unnecessary to determine whether the
court a quo was correct or not, in the conclusions it reached on the merits of the
appellant’s claim.

[26] I turn to the issue of the potential for resultant prejudice if the decision of
the Minister is set aside, which is inextricably connected to the finding of
unreasonable delay. As stated in Liberty Life Association of Africa v
Kachelhoffer NO & others 2001 SA 1094 (C) at 1114;
‘The enquiry into whether prejudice is present or not entails comparing the present position
of the other parties involved with what it would have been had proceedings been instituted
within a reasonable time. Prejudice will be considered to be present if because of the delay

the recollections of parties or the person whose decision is being reviewed have paled;
persons who have to depose to affidavits or testify are no longer available; and where
documentary or other forms of evidence are no longer available.’

[27]   In this case Mr Mandela is not available to put his side of the story which
compromises the principle of audi alteram partem. Although the appellant had a
number of witnesses in support of her version as to how the Qunu property was
allocated to her by the tribal leaders, the weight of this evidence might have
been diminished if Mr Mandela himself had been alive to give his version. All
the evidence and the conduct of Mr Mandela indicate that he genuinely believed
that the Qunu property was his to the exclusion of the appellant. The original
modest dwelling constructed on the property over the period 1993-1995 was
built at a time when he and the appellant were separated from each other and
hardly talking. The mansion was erected after they were divorced and was used
by himself and his new wife. The appellant must have been aware of such
improvements and adopted a supine attitude towards her alleged claim. She
provided no acceptable evidence that she contributed financially to the
improvements on the property. Mr Mandela allowed the property to be donated
to himself and to be registered in his name. He disposed of it by will. Absent
any dishonest and unworthy intentions to the late Mr Mandela, one is bound to
conclude that there is some important part of the story which the court did not
hear because the review was only instituted after Mr Mandela’s death.

[28]   I agree with the submission by the respondents that a reasonable person in
the position of the appellant would have asserted a right to ownership of the
property before the death of Mr Mandela. To wait until after his death is
extremely prejudicial to his estate and heirs because his version of events is not
available. Part of the prejudice lies in the very fact that, because the appellant’s

claim was only asserted after Mr Mandela died, the evidence in her favour may
now seem to be stronger than it would have been had Mr Mandela’s counter-
version been before the court.

[29] Another relevant consideration is that if Mr Mandela had been aware of
this claim in good time, he most probably would have devolved his estate
differently. He bequeathed substantial sums to the children, grandchildren and
great-grandchildren from his marriage with the appellant. If he had  known that
the appellant laid claim to the Qunu property for herself and for the benefit of
the children from her marriage to Mr Mandela, he may well not have made
these bequests or may have bequeathed more modest amounts. He may have
taken steps to exclude her as a beneficiary of family trusts on the basis that the
value of the Qunu property would be sufficient for her and the descendants from
that marriage.

[30] Be that as it may, I am prepared to assume, without deciding, that on the
evidence before the court the appellant’s case on the merits has good prospects
of success and that a meaningful result for the appellant would be achieved by
setting aside the decision of the Minister. These assumed prospects of success
are however not sufficient to swing the balance in her favour when it comes to
the discretion as to whether to overlook the delay, when due regard is had to the
potential for severe resultant prejudice if the decision of the Minister is set
aside.

[31] It must be made clear that the decision to dismiss the appeal is
exclusively based on the excessive undue delay coupled with the potential for
severe resultant prejudice to be suffered by the respondents, and the lack of an
acceptable explanation for the unreasonable delay. The following warrants

mentioning:  It should be noted that although customary law marriages were not
recognised in South African law until 1998, s 2 of the Recognition of
Customary Marriages Act 120 of 1998 provides that a marriage which is a valid
marriage at customary law and existed at the commencement of this Act is for
all purposes recognised as a marriage. This narration is to clarify the fact that
the appellant’s customary law right and constitutional right to property were not
simply ignored by this court. Even if the appellant were to succeed in asserting
her customary law claim to the property, she would not be entitled to the whole
property measuring (96, 9856) hectares simply because her right of possession,
customarily, would have been limited to the small portion allegedly allotted to
her by the King and the local community in her capacity as the second wife to
the late Mr Mandela. If the appellant’s case was confined to the small portion of
the entire property without conflating it with the larger portion which was
donated by the Minister in 1997, perhaps her case would have been adjudicated
differently.

[32] I now turn to deal with the question of costs. On the face of it the case
sought to be made by the appellant does not appear to be of a constitutional
nature. However, on analysis I think in essence she was challenging the legality
of a decision of the Minister to donate what she alleged to be her property to Mr
Mandela. The litigation thus implicated the constitutional principle of legality as
well as her rights to property (s 25 of the Constitution). See Harrielall v
University of KwaZulu-Natal (CCT100/17) [2017] ZACC 38 (31 October 2017)
paras 17-18. It is settled law that unsuccessful litigants who approach the court,
in good faith, to assert constitutional rights, should not be discouraged to do so
for fear of having costs awarded against them. (See Biowatch para 21 and
Affordable Medicines Trust & others v Minister of Health & others 2006 (3) SA
247 (CC) para 138).

[33] If the appellant’s delay justified a conclusion that the institution of the
review proceedings was frivolous or vexatious or manifestly inappropriate, this
may have justified a departure from Biowatch. However, the fact that a delay is
found by the court to be objectively unreasonable does not mean that the
litigation is frivolous or vexatious in the sense contemplated in the
Constitutional Court jurisprudence. The court a quo did not find that the
appellant’s institution of the proceedings was frivolous or vexatious; she was
ordered to pay costs on the sole basis that no constitutional issues were decided
in the light of the finding on delay. I do not think that this in itself warrants a
departure from Biowatch nor am I persuaded that the appellant’s institution of
the proceedings was vexatious or frivolous or manifestly inappropriate.

[34] In this regard the court a quo thus misdirected itself by ordering the
appellant to pay the costs as against the Minister. The appeal must succeed on
the costs issue against the Minister, I am of the view that each party should bear
its own costs. However, as regards the first respondent and the appellant these
are private persons in their private capacities, therefore the Biowatch principles
should not be applicable (cf Turnbull-Jackson v Hibiscus Court Municipality &
others [2014] ZACC 24; 2014 (6) SA 592 (CC) para 99).

[35] On the basis that the appellant instituted the review proceedings after 17
years without an acceptable explanation, the common law rule that review
proceedings should be initiated without undue delay has been violated.  I am
accordingly satisfied that the court a quo in the exercise of its discretion
correctly concluded that this unreasonable delay should not be condoned. The
appeal on the merits must accordingly fail.

[36] For the above reasons, I make the following order.

1 The appeal against the costs order granted by the court a quo against the
appellant in favour of the third respondent is upheld.
2 The costs order granted by the court a quo against the appellant in favour of
the third respondent is set aside and substituted with the following:
‘As regards costs between the appellant and the third respondent, each party
should bear its own costs’.
3 The appeal against the dismissal of the review application is dismissed.
4 The appellant is ordered to pay the first respondent’s costs including costs of
two counsel.

_______________________

J B Z Shongwe
Acting
President
of
the
Supreme Court of Appeal

Appearances

For the Appellant:
K Pillay SC (with her M Sello and M
Lekoane)

Instructed by:

Mvuzo Notyesi Incorporated, Mthatha
Christo
Dippenaar
Attorneys,
Bloemfontein

For the first Respondent:
V Maleka SC (with him T Ngcukaitobi)

Instructed by:

Messrs Ledwaba Mazwai, Pretoria
Kramer Wiehman Joubert, Bloemfontein

For the 3rd and 4th Respondent:
V Notshe SC (with him M Pangio)
Instructed by:
The State Attorney, Bloemfontein

For the 8th and 9th Respondent:
S C Makangoa

Instructed by:
Messrs
Makangela
Mtungani
Incorporated, Mthatha

Moroka Attorneys, Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

19 January 2018

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

Mandela v The Executors, Estate Late Nelson Rolihlahla Mandela & others (131/17)
[2017] ZASCA 02 (19January 2018)

Today the Supreme Court of Appeal (SCA) upheld an appeal against the costs order granted
by the Eastern Cape Local Division, Mthatha and dismissed the appeal regarding the review
application in a matter involving the late Mr Nelson Rolihlahla Mandela (Mr Mandela) and Mrs
Nomzamo Winifred Madikizela Mandela, the appellant.

The primary issues on appeal were whether the court a quo was correct to dismiss the
appellant’s review application with costs on the basis that she unreasonably delayed to
launch an application, and whether that delay should be condoned. A further issue was
whether the court was justified to mulct the appellant with costs given the nature of the
litigation.

The facts of the matter were: On 16 November 1997, the third respondent, the Minister of
Land Affairs for the Republic of South Africa (the Minister), took a decision to donate property
to Mr Mandela. Mr Mandela later bequeathed that property to the Nelson Rolihlahla Mandela
Family Trust (the Trust) to administer for the benefit of the Mandela family, his third wife, Ms
Graca Machel, and her two children. On 14 October 2014 the appellant instituted review

proceedings in which she sought an order declaring the Minister’s decision to donate the
property null and void; alternatively, reviewing and setting aside that decision and ancillary
relief. The court a quo dismissed the review application mainly on the basis that there was an
unreasonable delay which resulted in severe prejudice to the respondents.

Relying on the principles set in Associated Institutions Pension Fund & others v Van Zyl &
others 2005 (2) SA 302 (SCA), the SCA adjudicated the Minister’s administrative action in
terms of the common law and not the Promotion of Administrative Justice Act 3 of 2000
(PAJA). In line with these principles, the SCA held that in respect of judicial and administrative
decisions and litigation in general, it is desirable and in the public interest that finality be
reached within a reasonable time. It affirmed the long-standing rule that courts have the
power, as part of their inherent jurisdiction, to regulate their own proceedings. This enables
them to refuse a review application if the aggrieved party is guilty of unreasonable delay in
initiating the proceedings. In view of the facts, the SCA agreed with the court a quo that there
was an unreasonable delay by the appellant to institute the review proceedings.

In respect of the application to have the delay condoned, the SCA held that a reasonable
person in the position of the appellant would have asserted a right to ownership of the
property before Mr Mandela’s death. It found that the appellant’s delay was prejudicial to Mr
Mandela’s estate and heirs because his version of events was not available. It thus refused
the application for condonation.

Regarding the issue of costs, the SCA found that the litigation implicated the constitutional
principle of legality as well as the appellant’s rights to property. Consequently, it applied the
principles laid in Biowatch Trust v Registrar, Genetic Resources & others 2009 (6) SA 232
(CC) and concluded that the appeal must succeed on the costs issue against the Minister and
ordered that each party pay its own costs. However, as regards the first respondent and the
appellant, it held that these are private persons acting in their private capacities. In this
respect, it held that the Biowatch principles are not applicable and the appellant is ordered to
pay the first respondent’s costs including costs of two counsel.