CONTEXT: THE CONSERVATION OF THE SOUTH AFRICAN HERITAGE POST-1994

The protection of the cultural heritage must be seen against the backdrop of the protection of cultural rights in South Africa in the post-1994, new democratic era. The Constitution of the Republic of South Africa, 1996 enshrines amongst others, the cultural rights of the people of South Africa. Section s 31 (1) protects the rights of cultural, religious and linguistic communities:

Subsection (2), however, contains the qualifier that the enumerated rights of subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights (chapter 2 of the Constitution contains the Bill of Rights).

The legal protection of the South African cultural heritage is found in the National Heritage Resources Act of 1999 (NHRA), an Act constituting a definite break with the past. The NHRA sets out to protect and manage heritage resources as part of the national estate of South Africa. To this end the South African Heritage Resource Agency (SAHRA) has been established to nationally coordinate and promote heritage management.

Given the reality that the NHRA represents a break with the past, Jonker reminds us that the act is a renewal of heritage discourse as well, “firmly recognising its connection to transition and the memory of past, as well as goals of reconciliation and recognition of diverse cultural identities.”Footnote ¹ This particular feature of the NHRA is reflected in the preamble:

Section 3(1) defines the national estate for the purposes of the act as including “those heritage resources of South Africa which are of cultural significance or other special value for the present community and for future generations,” and the subsection states further that these resources fall within the sphere of operations of the heritage resource authorities. Section 2 (the definitional section) describes “cultural significance” to mean “aesthetic, architectural, historical, scientific, social, spiritual, linguistic or technological value or significance.”

A huge variety of objects and sites may be included in the national estate, among others, archaeological and paleontological sites (section 3[2][f]), graves and burial grounds (section 3[2][g]), sites of significance relating to the history of slavery in South Africa (section 3[2][h]), and archaeological objects and material recovered from the soil or waters of South Africa (section 3[2][i][i]). In the definitional section (section 2[ii]), an archaeological site or object is defined to include, among others, “material remains resulting from human activity which are in a state of disuse and are in or on land and which are older than 100 years, including artefacts, human and hominid remains and artificial features and structures… .”

Graves and burial grounds include ancestral graves, royal graves and graves of traditional leaders, graves of victims of conflict, graves of individuals designated by the minister by notice in the Gazette, historical graves and cemeteries, and other human remains not covered in terms of the Human Tissue Act 65 of 1983 (remains that have been donated for the advancement of medicine as provided for in terms of the Human Tissue Act). Regarding graves and burial grounds, all remains, except those that have been donated for the advancement of medicine, are included in the national estate (provided, of course, the remains are of cultural significance or other special value for the present community and for future generations).

Section 3(3) proposes to narrow the open-ended definition, “without limiting the generality” of the preceding subsections, by stating that a place or object is part of the national estate if it has cultural significance or other special value because of the following:

• • Importance in the community or pattern of South Africa's history

• • Possession of uncommon, rare, or endangered aspects of South Africa's natural or cultural heritage

• • Potential to yield information that will contribute to an understanding of South Africa's natural or cultural heritage

• • Importance in demonstrating the principal South Africa's natural of a particular class of South Africa's natural or cultural places or objects

• • Importance in exhibiting particular aesthetic characteristics valued by a community or cultural group

• • Importance in demonstrating a high degree of creative or technical achievement at a particular period

• • Strong or special association with a particular community or cultural group for social, cultural, or spiritual reasons

• • Strong or special association with the life or work of a person group or organization of importance in the history of South Africa

• • Sites of significance relating to the history of slavery in South Africa

Section 5(1) of the act sets out four general principles for heritage resource management to be recognized by persons and bodies who act in terms of the legislation:

1. 1. Heritage resources have lasting value in their own right and provide evidence of the origins of South African society; and because they are valuable, finite, nonrenewable, and irreplaceable, they must be carefully managed to ensure their survival.

2. 2. Every generation has a moral responsibility to act as trustee of the national heritage for succeeding generations, and the state has an obligation to manage heritage resources in the interests of all South Africans.

3. 3. Heritage resources have the capacity to promote reconciliation, understanding, and respect and contribute to the development of a unifying South African identity.

4. 4. Heritage resources management must guard against the use of heritage for sectarian purposes or political gain.

Certain additional principles are identified in the remainder of section 5: For example, the principle that heritage is “an important part of the history and beliefs of communities and must be managed in a way that acknowledges the right of affected communities to be consulted and to participate in their management” (s 5[4]). Heritage also affects research, education, and tourism and “must be developed and presented for these purposes in a way that ensures dignity and respect for cultural values” (s 5[5]). An observation regarding these two principles is not out of place. It is submitted that the principle of consultation with affected communities could (and should) limit the emphasis on research, education, and tourism enunciated in section 5(5).

Section 5(6) sets out that the integration of heritage conservation with urban and rural planning and social and economic development must be promoted through policy, administrative planning, and legislation. Finally, section 5(7) requires that the identification, assessment, and management of heritage resources must do the following:

• • Account for all relevant cultural values and indigenous knowledge systems.

• • Account for material or cultural heritage value and involve the least possible alteration or loss of it.

• • Promote the use and enjoyment of and access to heritage resources, in a way consistent with their cultural significance and conservation needs.

• • Contribute to social and economic development.

• • Safeguard the options of present and future generations.

• • Be fully researched, documented, and recorded. (section 5[7])

Section 10 contains the general procedural principles governing the protection of heritage resources. When the authority responsible for the national estate makes a decision such as to formally protect heritage resources by notice in the Government Gazette or whether or not to issue a permit. In terms of an appeal, the decision must be consistent with the section 5 principles, as well as any further principles prescribed by regulation by a heritage resource authority in terms of section 6 (see sections 10[1] and 2[a] in particular).

Chapter II of the act provides for the protection and management of heritage resources. For example, the act provides for the declaration of places as national and/or provincial heritage sites, in terms of section 27, and for the designation of certain surrounding areas (of a national heritage site) as protected areas, in terms of section 28. Section 29 allows for the provisional protection of areas and resources, while section 30 requires the compilation of provincial registers of heritage resources. The inclusion of a place in a heritage register, however, does not negate the act's specific protection of archaeological sites and burial sites in terms of sections 35 and 36, respectively (section 30[14]). Provision is also made for places of environmental or cultural interest to be designated as heritage areas by a planning authority, a provincial heritage resources authority, owners of property in the area, and affected communities in terms of section 31. Such a heritage area must be protected by municipal bylaw or the municipality's planning scheme as required by section 30(7).

Apart from these procedural provisions, the act highlights and sets out the protection of certain specific heritage resources in Part 2 of Chapter II. Section 36 deals specifically with burial grounds and graves. In terms of section 36(1), the South African Heritage Resources Act (SAHRA) must conserve and care for burial grounds and graves that are not the responsibility of any other authority. SAHRA is authorized under section 36(2), to identify “graves of the victims of conflict” as well as “any other graves which it deems to be of cultural significance.” SAHRA may further erect and must maintain memorials associated with such graves that are not the responsibility of another authority.

In terms of subsection (3) no person may, without a permit issued by SAHRA or a provincial heritage resources authority:

The section also provides for a specific procedure to be followed in the event of discoveries of unknown graves during the course of development or other activities, subject to the applicability of any other law. The relevant activity must cease, and the discovery must be reported to the responsible heritage resources authority. The heritage resources authority, in cooperation with the South African Police Service and in accordance with relevant regulations (of the heritage resources authority), must investigate whether or not the grave is protected in terms of the act or is of significance to any community (see section 366[a]). If the grave is protected or significant in this way, the heritage resource authority must assist “any person who or community which is a direct descendant” to make arrangements for exhumation and reinterment of the contents of the grave; or, if no such person or community is available, the authority may make any arrangements it deems fit in terms of section 36(6)(b).

THE FACTS AND MAIN FEATURES OF THE DECISION OF THE COURT IN OUDEKRAAL I AND II

Oudekraal is the name of an area located on the slopes of the Twelve Apostles mountain range on the Atlantic seaboard of the Cape Peninsula, adjacent to the suburb of Camps Bay. Oudekraal Estates is the owner of the property. In 1957 its predecessor-in-title, the late Sir Henry Price, lodged an application with the then provincial administrator of the Cape of Good Hope to lay out and establish a township in terms of section 18 of the Township Ordinance 33 of 1934 (now repealed). The administrator granted permission. Oudekraal Estates bought the land in 1965, however, the land has remained undeveloped. In August 1966, after having owned the land for 30 years without having undertaken any development, Oudekraal Estates submitted an engineering services plan to the Cape Metropolitan Council as a prelude to implementing its development rights that flowed from the approval of the township back in 1957.

The City of Cape Town rejected the services plan on the ground that the development rights had lapsed. Oudekraal Estates lodged an application to the high court to have this decision set aside and sought declaratory orders to the effect that its development rights were of full force and effect. The city argued that because two requirements of the township ordinance had not been complied with in time, the development rights had lapsed. In each case the administrator had granted an extension of time for compliance with the relevant requirement, but only after the time originally stipulated had expired.

Davis J and Veldhuizen J (the judges in the second Oudekraal case (Oudekraal II)) dismissed the application with costs and found for the city. For Davis J the essential issue was whether the administrator's actions and the consequent registration of township rights were lawful.Footnote ² Relying on section 19 of the ordinance, he held that the administrator's extensions of the time within which the general plan (for the establishment of the township) had to be submitted was invalid. Because no provision was made for ex post facto condonation of noncompliance, the time period provided for in the ordinance was thus peremptory and definitive.Footnote ³ The result was that the approval for the establishment of the Oudekraal Township was invalid and a nullity. Davis J held the following:

Evidence of the presence of burial sites on the property had been placed before the court in the original application. However, the basis on which the application was dismissed rendered it unnecessary to consider the effect of the presence of burial places on the validity of the administrator's decision to approve the establishment of the Oudekraal Township. The court nonetheless took cognizance of their manifest existence at all material times.Footnote ⁵

Oudekraal Estates appealed against the decision to the Supreme Court of Appeal (Oudekraal II). On appeal the court a quo's decision was upheld and the appeal dismissed but for different reasons. Instead of examining the validity of the extensions of time granted by the administrator, the Supreme Court of Appeal (per Howie and Nugent) focussed on the administrator's grant of the application to establish the township itself. For this focus the presence of the burial places was of central importance.Footnote ⁶

The Supreme Court of Appeal observed that the particular site contained 20 burial places, including two kramats (a sacred grave or shrine) that remain of great significance to Cape Town's Muslim community. The court described the burial places thus:

What is more, both his and the other kramat have been visited regularly since before the end of the nineteenth century.Footnote ⁸ Given these circumstances, the court found that access to the kramats is of great importance to the Muslim people of Cape Town.

Yet, on the evidence before them, the judges had to conclude that the authorities concerned were either ignorant of the existence of the burial places and kramats or had ignored them.Footnote ⁹ Giving the authorities the benefit of the doubt, the judges held that it was more likely that the authorities were unaware of the graves, because they would have been aware that violation of graves was an offense at common law. (“We say so because it has always been an offence at common law to desecrate a grave.”Footnote ¹⁰)

The judges held further that the presence of the burial places and kramats on the land—“religious and cultural sites of particular significance to a sector of the Cape Town community”—was a factor that “should properly have been taken into account and evaluated even on pre-constitutional principles” in the decision to allow the establishment of the Oudekraal Township.Footnote ¹¹

The failure to consider the presence of the burial places rendered the administrator's decision invalid from the outset:

In addition, the decision was unlawful (ultra vires) because it permitted subdivision and land use in criminal disregard of the burial places and kramats because it would be impossible to avoid their desecration or violation if one were to construct a road over a grave site or to build over it.Footnote ¹³ It therefore followed inevitably from the finding that the administrator's approval was unlawful and invalid from the outset.Footnote ¹⁴

This conclusion was not the end of the matter, however. It gave rise to the rather vexing problem resulting from a finding that action is unlawful and invalid: that of the legal consequences attached to such a finding. Was it possible to disregard the administrator's approval and all its consequences as if they had never existed “merely because it believed that they were invalid [sic] provided that its belief was correct?”Footnote ¹⁵

The question relates to an important principle in administrative law that “an administrative act has legal force until such time as it is set aside on review by a court.” It was held that in terms of the principles of administrative law: “Until the Administrator's approval (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked.”Footnote ¹⁶ It could therefore be argued that the local authority was thus possibly bound to consider plans presented by the property developer, to the extent that it had a legal duty to do so, and had to carry out any other statutory obligations flowing from the administrator's approval.Footnote ¹⁷

However, it did not follow that Oudekraal Estates was entitled to the declaratory order it sought (to subdivide the land in accordance with the general plan that had been registered and to develop the land in the way in which it had planned). Just the opposite obtains, the judges held, for the plain reason that the “exploitation of property rights is always constrained by such laws as exist at the time that they are sought to be implemented.”Footnote ¹⁸ In this case, the court stated, any present day development would be constrained by the common-law prohibition on the desecration of graves as well as the protection afforded to the constitutional protection of cultural and religious practices by section 31(1) of the Bill of Rights. Moreover, the burial sites were protected against disturbance by section 36(3) of the NHRA.Footnote ¹⁹ Thus it was held that the appellant was not entitled to an order that its development rights in respect of the Oudekraal Township were of full force and effect, or that it was entitled to the other relief which it found were no more than precursors thereto. The appeal was dismissed.

OUDEKRAAL III

Admittedly somewhat belatedly, the court proceedings the Supreme Court of Appeal alluded to materialized. Together with the SAHRA and South African National Parks, The city of Cape Town instituted review proceedings by way of notice of motion to have the 1957 approval of development rights reviewed and set aside. The respondents (Oudekraal Estates) accepted the Supreme Court of Appeal's ruling that the administrator's decision to permit the development of the Oudekraal Township was invalid administrative action from its inception. However, the respondents opposed the application on the ground that the decision to set the rights aside was prevented by the operation of the “delay rule.”Footnote ²⁰

Although the purpose and application of the delay rule constitute the focal point of the court's ruling (per Van Reenen), the court's assessment of the effect of a failed application on the cultural rights of a community is significant for at least a more nuanced understanding of and approach toward heritage conservation.

The delay rule, which requires that review proceedings be instituted within a reasonable time, is fundamentally procedural in character. Historically, it evolved through the exercise of courts' inherent power to regulate and control their own procedures. The reasons for its introduction were an acknowledgment of the inherent potential of prejudice to interested parties that may result from an unreasonable time lapse, as well as the public interest element in the finality of administrative decisions and acts.Footnote ²¹

The application of the delay rule, so the court held, first requires a consideration of whether the delay in instituting review proceedings has been unreasonable, and if so, secondly, whether it should be condoned. The first enquiry (whether the delay was unreasonable) entails the making of a value judgment and not the exercise of a judicial discretion. For this reason comparisons with delays which in other cases have been held to be unreasonable serve no useful purpose.Footnote ²² The second enquiry (whether the delay should be condoned), if the need for it arises, entails the exercise of a discretion on the basis of all the relevant circumstances of a particular case. The need to enter into the second enquiry only arises if the first enquiry results in a conclusion that the delay was unreasonably long. In such an event, the court is obliged to consider whether it should be condoned or not.Footnote ²³

Upon a separate and independent examination of the action, or rather inaction, of the three applicants, the court found that each had delayed unreasonably before instituting the required review proceedings. Thus the court was obliged to consider whether, in the exercise of its discretion, it should condone what was considered an unreasonable delay.Footnote ²⁴

The court acknowledged that although it has a wide discretion to condone an unreasonable delay through a careful balancing of all the relevant circumstances, it nonetheless is a judicial discretion that must “be exercised on judicial grounds, not capriciously but for substantial reasons.”Footnote ²⁵ Thereupon the court turned to the guidance provided by the Supreme Court of Appeal in Oudekraal II regarding what factors could assist in the exercise of its discretion. These factors (some of which overlap or interlink) are as follows:

• • The long period of time that has elapsed since the administrator granted the challenged approval (but with the caveat that it is not a decisive consideration)

• • The need for finality of administrative decisions and the exercise of administrative functions

• • The extent to which the first respondent or third parties might have acted in reliance on the challenged decision

• • The consequences to the public at large and future generations of an invalid decision being allowed to standFootnote ²⁶

The court noted that were the application to fail, the first respondent would be able to proceed with the development. As a point of departure, the court noted that from historical and environmental perspectives, the land in dispute and the land immediately adjacent thereto is unique.

According to expert evidence before the court, the burial grounds and kramats on the land came into being during the eighteenth and early nineteenth centuries and preceded the granting of private ownership in 1836 over the farm Oudekraal. These burial grounds and kramats form an integral part of the cultural history of the Cape Muslim community. This community owes its existence to mainly enforced Afro-Asian emigration to the cape between the seventeenth and early years of the nineteenth centuries. Muslims who arrived were mainly political prisoners, slaves, and captured or exiled learned and highly literate religious leaders from the mainland of India, Java, Batavia, and Indonesia.

The presence of the burial grounds and kramats on the Oudekraal land is ascribed to the fact that the graves of Cape Muslims were often set up in isolated areas on the lower slopes of mountains near streams. The reasons for this practice seem to have been that political prisoners from the Dutch Asian colonies were banished to isolated parts of the Cape Colony; slaves were not permitted to be buried in the established cemeteries; and, for obvious reasons, escaped slaves tended to live in isolated areas of the Table Mountain range and were buried where they had lived. Moreover, many Shaykhs (spiritual leaders in the Muslim community) sought the solitude of the mountain slopes for spiritual growth and seclusion. When they died, their religious adherents continued to visit their kramats. When the religious adherents in turn died, they were buried in close proximity of the kramat. That explains why many graves are found in the vicinity of the kramat. The court explained the interpretation of the experts regarding sacred burial places as follows: “The Muslim belief is that the mercy of God is continually present at the burial places of persons considered to have been righteous and accordingly a major socioreligious tradition has developed around such shrines.”Footnote ²⁷

Because pilgrimage to the Prophet Mohammed's grave is a central precept of the Muslim faith, those about to go on pilgrimage to Mecca visit the burial sites in the Oudekraal area accompanied by family members to greet them and seek God's blessings in the belief that the departed will intercede with God on their behalf. The poor would visit the kramats as a surrogate for a pilgrimage to Mecca. This would explain why the burial grounds and kramats had been venerated in the past and continue to be so. As such they constitute holy or sacred ground.Footnote ²⁸ (It is worthwhile to note in passing that after the judgment of the Supreme Court of Appeal had been handed down, further investigations brought to light an even greater number of burial sites on the property of Oudekraal Estates than were reflected in the papers in the original application.Footnote ²⁹)

The court concluded its brief outline of the history of the Cape Muslim community and the socioreligious significance of the burial places and kramats found on the Oudekraal land with the following observation:

It is this factual position that persuaded the court to place heavy emphasis on the undesirable consequences the refusal of the application would have had on members of the Muslim community. It held that their right to freedom of religion, evidenced in their ability to practise their culture in terms of section 31(1) and exercise their religious beliefs in terms of section 15(1)Footnote ³¹ by having access to and visiting the graves and kramats on the Oudekraal land, would be infringed. If that happened (the application failing and the first respondent implementing the township as approved), the constitutionally guaranteed rights under sections 15(1) and 31(1) of the Constitution of all members of the Muslim community of the Cape to freedom of religion as well as the right to enjoy their culture and practice their religion would be infringed.Footnote ³² A refusal would also affect on the interest of members of the general public to have the Oudekraal area preserved as a “heritage place” of “high significance,” a cultural landscape, and an area of environmental importance.Footnote ³³

In addition to the cultural and religious significance of the Oudekraal land caused by the presence of graves and kramats as well as footpaths providing access thereto, the Oudekraal area, in its undeveloped state, is without a doubt of inestimable scenic value and constitutes a national asset that adds to the overall tourist experience of the Cape Peninsula as well as the general recreational enjoyment and pursuits of Capetonians. Moreover, the Oudekraal area adjoins the Table Mountain National Park, part of the “Cape Floral Region,” which is listed as a World Heritage Site and universally considered to be of “outstanding universal significance to humanity.”Footnote ³⁴

An interesting line of attack, chosen by counsel for the first respondent to counter the application of the City of Cape Town, was to rely on the comprehensive legislative and regulatory framework that has been established during the past decade to ensure that religious and cultural sensitivities are respected and accommodated, and that places or structures of regional and national significance are preserved and properly managed. The contention was that such measures provide effective protection against the desecration of sites of religious significance in the context of the development of the Oudekraal Township. In this regard it was argued that the graves and kramats on the Oudekraal land are exactly what is envisaged to be protected and managed under NHRA.Footnote ³⁵ Therefore no need exists, so the argument went, for the court to take the “extreme measure” of granting the application as a means of ensuring that development in accordance with the administrator's decision made as far back as 1957 does not take place.Footnote ³⁶

The court took cognizance of the recent origin of the legislative and regulatory measures (of NHRA). However, the legislation came into being long after the administrator's approval. Both the validity of those measures and the validity of their application, in the context of an invalid township approval at a point prior to their coming into existence, have not been tested in a court of law. If this happened, the outcome be unpredictable and could result in long drawn-out litigation. “In view of the nature of the discretion this Court is required to exercise in deciding whether an undue delay should be condoned or not, it is at the very least questionable whether uncertain and speculative considerations of that nature, should be taken into account.”Footnote ³⁷ On this basis the court was not satisfied that, on the facts of this case, the measures provided for in NHRA are adequate to ensure and protect the religious and cultural rights of the Muslim community of the Cape.Footnote ³⁸

Yet another submission by the first respondent's counsel was that the applicants and/or their predecessors, by not taking steps to have the administrator's decision reviewed and set aside, had tacitly acknowledged that it was regularly granted and thus forfeited the right of challenging it in Oudekraal III proceedings.

The court disagreed. A plausible explanation for the applicants' inaction, was that they, the other officials, and public bodies involved acted on the erroneous but reasonable belief that the Oudekraal Township development permission was validly granted.Footnote ³⁹ Therefore, on a balance of probabilities, it was not shown that the applicants acquiesced in the administrator's decision and as a consequence forfeited the right to attack it in the proceedings. On the contrary, on the basis of the Supreme Court of Appeal's judgment, as public bodies exercising public powers, they were obliged to do so.Footnote ⁴⁰

The court then proceeded to enumerate aspects of the case (the applicants' counsel preferred to designate them as “unusual and unprecedented, if not unique”) that ought to be considered by the court in exercising its discretion in favor of condoning the unreasonable delay. Some of the features highlighted were as follows:

• • As public bodies the applicants were seeking to set aside an invalid administrative decision taken during the height of the apartheid era on the basis of its momentous and deleterious implications for present and future generations when viewed from religious, cultural, heritage, and environmental perspectives.

• • The second respondent (the provincial Minister of Environmental Affairs and Development Planning [Western Cape]), the successor to the original decision maker, the administrator, accepted that the decision was invalid. He opted not to oppose the application and adopted the stance that any attempt to remove the graves and kramats from the Oudekraal land would be contemptuous of the religious feelings, social traditions, and cultural beliefs of the Muslim community; and the development of a township as approved would be virtually impossible without desecrating or violating at least some of such graves and kramats. Moreover, allowing the administrator's decision to stand and allowing such development on the land to be implemented would have a significant effect on the rights of the Muslim community of the Cape to enjoy their culture and practise their religion. Moreover, was in the public interest that such rights be protected and that the provisions of the Constitution be given effect to.

• • The approval of a township on the Oudekraal land has not been acted on and no development has taken place on it, or anything else done with it, despite the fact that approval had been granted nearly 50 years ago.

• • Since long before the Oudekraal land passed into private hands, it played a central role in the religious and cultural life and the heritage of the Muslim community of the Cape who continued to visit the graves and kramats on it and to treat the area as a spiritual haven.

• • The administrator's approval was not only invalid as a result of his having failed to take the presence of the graves and kramats into account, but also because it permitted subdivisions of land use in criminal disregard of the fact that the graves and kramats would be desecrated or violated if development took place in terms of the approved township plan. If the invalid approval were allowed to stand, the court would not only be “breathing judicial life into an invalid administrative decision, but in doing so would be placing its imprimatur on development, the implementation whereof would involve criminal conduct.”

• • Finally, the first respondent's own expert found that there is “no prospect whatsoever” that the township approval, which the first respondent wishes to have validated by the invocation of the delay rule (or any other township), would be permitted on the Oudekraal land at the present time by reason of currently accepted planning and environmental norms.Footnote ⁴¹

The court conceded that public interest in the finality of administrative decisions and acts is yet another factor that must be considered by a court in the exercise of its discretion on the condonation of an unreasonable delay in the instituting of review proceedings. It is, after all, one of the main reasons for the existence of the delay rule. Yet, it is not one that trumps all other factors. On the contrary, the importance assigned to it depends on the circumstances and facts of a particular case. In the present case, given that there was little, if any, evidence that third parties (not to mention the first respondent) rearranged or altered their affairs on the strength of the administrator's decision, the need for finality did not outweigh the other factors enumerated earlier.Footnote ⁴²

The court conceded further that it is required to exercise its discretion whether to allow a review, despite the lapse of an unreasonable time, with due regard to and respect for the Constitution. It is obliged to consider the values enshrined in the Constitution, particularly the spirit, purport, and objects of the Bill of Rights as well as the interests of justice. Thus the court recognized that section 34, which enshrines the fundamental right of access to the courts, forms part of the Bill of Rights and that the court is obliged to promote the spirit, purport, and object of the Bill of Rights in terms of the provisions of section 39(2) of the Constitution. Furthermore, the court allowed that section 1(c) of the Constitution entrenches the rule of law and its over-arching principle of legality as a founding value and that, for this reason, as few invalid exercises of administrative power as possible should be allowed “to slip through the net.”Footnote ⁴³ Further, acting in the public interest, the applicants were in the proceedings seeking to enforce the fundamental rights of members of the Muslim community to freedom of religion, their rights to practice their religion, and to enjoy their culture, in terms of sections 15(1) and 31(1) of the Constitution.

Regarding the enforcement of the rights of the Muslim community, the court noted that a large proportion of the members of the Muslim community were previously socially, politically, and economically disadvantaged because of the repressive and disempowering political policies of the past and, for that reason, have not been in a position to effectively assert and protect their interests.Footnote ⁴⁴

Thus given that the Constitution is the supreme law of the country, and the Bill of Rights also binds the judiciary, deference to the principle of legality (which in its wider sense applies to all state authority, including that of the judiciary) played an important role in the exercise of its discretion. In these circumstances, the granting of an order whose practical effect would be to place the court's approval on an administrative decision—the implementation of which would not only offend against the fundamental rights in the Bill of Rights, but also constitute criminal conduct—would be in disharmony with the Constitution.Footnote ⁴⁵ More pertinently, a validation of the administrator's decision would be irreconcilable with the principle of legality, an aspect of the rule of law binding also on courts of law, in that it would allow criminal conduct in the form of the desecration of graves.Footnote ⁴⁶

Consideration was also given to the fact that, other than to the first respondent, no material prejudice would result should the Administrator's decision be set aside.

The court further factored into the exercise of its discretionary power, the position of the first respondent were the application to succeed. The court observed that in the context of a capitalist society in which the financial rewarding of entrepreneurial foresight and skill is the foundation of commercial activity, the first respondent stood to forfeit an extremely substantial enhancement of its inheritance should the administrator's decision be set aside. The court also mentioned that it had not lost sight of the fact that if the administrator's decision were set aside, the first respondent would be exposed to losses occasioned by its having been precluded from pursuing alternative investment opportunities, the quantum of which was difficult to determine.Footnote ⁴⁷

Still, after an “holistic weighing of not only the afore-mentioned factors, but also the other submissions in favor of and against condoning the delay in the institution of these proceedings,”Footnote ⁴⁸ the court concluded that it should exercise its discretion in favor of condoning the applicants' unreasonable delay. The court thus accepted that the administrator's decision was invalid from its inception.