Bakgatla ba Mocha ba Phopolo and Another v Premier: Mpumalanga Province and Another (17639/15) [2022] ZAGPPHC 160 (4 March 2022)

Bakgatla ba Mocha ba Phopolo and Another v Premier: Mpumalanga Province and Another (17639/15) [2022] ZAGPPHC 160 (4 March 2022)

The court found that the Applicants failed to comply with the statutory requirements for recognition as a traditional community and for the appointment of a Senior Traditional Leader. The Framework Act and the Mpumalanga Act require the involvement and consent of the Royal Family and Inner Royal Family, which the Applicants did not join or involve. The Applicants did not provide evidence of compliance with customary law or statutory procedures, nor did they demonstrate that they were subject to a system of traditional leadership. The Premier acted within the confines of the law and was not obliged to recognize the Applicants as a traditional community or leader in the absence of statutory...

Citation
[2022] ZAGPPHC 160
Parties
Applicant: Bakgatla ba Mocha ba Phopolo Traditional Community (of Mmametlhake); Applicant: Amos Phopolo Maloka III; Respondent: Premier: Mpumalanga Province; Respondent: Chairperson of the Provincial Committee on Traditional Leadership Disputes and Claims (Mpumalanga) [CTLDC]; Respondent: Commission on Restitution of Land Rights; Respondent: Regional Land Claims Commissioner (Mpumalanga Province); Respondent: Regional Land Claims Commissioner (Limpopo Province); Respondent: Minister of Cooperative Governance and Traditional Affairs
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 March 2022
Case Number
17639/15
Procedural Posture
Review Application / Judgment on Merits
Outcome
Application dismissed with costs, including costs of two counsels.
Judges
Mahlangu AJ
Legal Topics
Traditional Leadership Recognition, Review of Administrative Action, Customary Law, Joinder, Audi Alteram Partem, Declaratory Relief
Administrative Law Land and Property Traditional Leadership Recognition Review of Administrative Action Customary Law Joinder Audi Alteram Partem Declaratory Relief

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Parties

Bakgatla ba Mocha ba Phopolo Traditional Community (of Mmametlhake)

Applicant

Amos Phopolo Maloka III

Applicant

Premier: Mpumalanga Province

Respondent

Chairperson of the Provincial Committee on Traditional Leadership Disputes and Claims (Mpumalanga) [CTLDC]

Respondent

Commission on Restitution of Land Rights

Respondent

Regional Land Claims Commissioner (Mpumalanga Province)

Respondent

Regional Land Claims Commissioner (Limpopo Province)

Respondent

Minister of Cooperative Governance and Traditional Affairs

Respondent

Procedural Posture

Review Application / Judgment on Merits

Legal Issues

  1. 1 Whether there are legal bases for reviewing and setting aside the recommendations of the CTLDC and the decision of the Premier of Mpumalanga Province regarding the existence and recognition of the Bakgatla Ba Mocha Phopolo Traditional Community and the status of Amos Phopolo Maloka III as Senior Traditional Leader.
  2. 2 Whether the Premier's decision not to grant formal recognition to the Bakgatla ba Mocha ba Phopolo Traditional Community was lawful under the relevant legislation.
  3. 3 Whether the Applicants were afforded a hearing in terms of the rules of natural justice (audi alteram partem).

Ratio Decidendi

The court found that the Applicants failed to comply with the statutory requirements for recognition as a traditional community and for the appointment of a Senior Traditional Leader. The Framework Act and the Mpumalanga Act require the involvement and consent of the Royal Family and Inner Royal Family, which the Applicants did not join or involve. The Applicants did not provide evidence of compliance with customary law or statutory procedures, nor did they demonstrate that they were subject to a system of traditional leadership. The Premier acted within the confines of the law and was not obliged to recognize the Applicants as a traditional community or leader in the absence of statutory...

Court Disposition

Application dismissed with costs, including costs of two counsels.

Orders

  • The Applicants' application is dismissed with costs, such costs to include costs of two counsels.