Akanmbi v Mavusi N.O and Others (1347/2022) [2023] ZAMPMHC 3 (19 January 2023)

Akanmbi v Mavusi N.O and Others (1347/2022) [2023] ZAMPMHC 3 (19 January 2023)

The court found that the Magistrate committed an irregularity by condoning the non-joinder of the Traditional Authority, which was a necessary party due to its control and allocation of the land in dispute. The Magistrate lacked discretion to allow the matter to proceed without joinder. The subsequent referral to oral evidence was vitiated by this irregularity, as the proceedings could not validly continue in the absence of the necessary party. The judgment and order of the Magistrate were accordingly reviewed and set aside, and the matter was ordered to proceed de novo before another Magistrate.

Citation
[2023] ZAMPMHC 3
Parties
Applicant: Dr Ayokunle Aboyomi Akanmbi; Respondent: Magistrate MG Mavusi N.O.; Respondent: Minister of Justice and Correctional Services; Respondent: Victor Isaac Masango
Court
Middelburg High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
19 January 2023
Case Number
1347/2022
Procedural Posture
Review Application / Application for Review and Setting Aside of Magistrate's Judgment and Order
Outcome
Application for review granted; Magistrate's judgment and order set aside; matter to proceed de novo before another Magistrate; costs awarded against Third Respondent.
Judges
MBG Langa
Legal Topics
Non Joinder, Review of Magistrate Decision, Permission to Occupy, Eviction Proceedings
Civil Procedure Land and Property Non Joinder Review of Magistrate Decision Permission to Occupy Eviction Proceedings

Case Brief

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Parties

Dr Ayokunle Aboyomi Akanmbi

Applicant

Magistrate MG Mavusi N.O.

Respondent

Minister of Justice and Correctional Services

Respondent

Victor Isaac Masango

Respondent

Procedural Posture

Review Application / Application for Review and Setting Aside of Magistrate's Judgment and Order

Legal Issues

  1. 1 Whether the Magistrate erred in condoning the non-joinder of the Traditional Authority.
  2. 2 Whether the proceedings could validly continue in the absence of the necessary party.
  3. 3 Whether the referral to oral evidence was vitiated by the irregularity of non-joinder.

Ratio Decidendi

The court found that the Magistrate committed an irregularity by condoning the non-joinder of the Traditional Authority, which was a necessary party due to its control and allocation of the land in dispute. The Magistrate lacked discretion to allow the matter to proceed without joinder. The subsequent referral to oral evidence was vitiated by this irregularity, as the proceedings could not validly continue in the absence of the necessary party. The judgment and order of the Magistrate were accordingly reviewed and set aside, and the matter was ordered to proceed de novo before another Magistrate.

Court Disposition

Application for review granted; Magistrate's judgment and order set aside; matter to proceed de novo before another Magistrate; costs awarded against Third Respondent.

Orders

  • The judgment and order of Magistrate MG Mavuso made on 5 December 2021 condoning the non-joinder of the Ndebele Kingdom Traditional Authority and referring the matter to oral evidence is reviewed and set aside.
  • The matter is ordered to proceed de novo before another Magistrate.