Kgoshikgolo and Another v Commission on Traditional Leadership Dispute and Claims and Others (55035/2012) [2018] ZAGPPHC 969 (28 March 2018)

Kgoshikgolo and Another v Commission on Traditional Leadership Dispute and Claims and Others (55035/2012) [2018] ZAGPPHC 969 (28 March 2018)

The court held that the Commission on Traditional Leadership Disputes and Claims was constitutionally and statutorily empowered to investigate and resolve disputes regarding the Bapedi Kingship, including claims previously litigated under pre-constitutional law. The doctrine of res judicata, while promoting finality, cannot be rigidly applied where it would perpetuate injustice or conflict with constitutional imperatives. The Commission's findings regarding the rightful heir to the Bokgosi, the validity of KK Sekhukhune's appointment, and the succession of Victor Thulare were based on a thorough investigation of Bapedi customs and were not barred by previous judicial decisions. The...

Citation
[2018] ZAGPPHC 969
Parties
Applicant: Kgagudi Kenneth Sekhukhune; Applicant: Mohlaletsi Traditional Authority; Respondent: Commission on Traditional Leadership Disputes and Claims; Respondent: President of the Republic of South Africa; Respondent: Minister of Provincial Affairs and Local Government; Respondent: Thulare Victor Thulare
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 March 2018
Case Number
55035/2012
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs.
Judges
Mlambo JP
Legal Topics
Promotion of Administrative Justice Act, Customary Law, Traditional Leadership Disputes, Res Judicata, Constitutional Supremacy
Administrative Law Constitutional Law Promotion of Administrative Justice Act Customary Law Traditional Leadership Disputes Res Judicata Constitutional Supremacy

Case Brief

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Parties

Kgagudi Kenneth Sekhukhune

Applicant

Mohlaletsi Traditional Authority

Applicant

Commission on Traditional Leadership Disputes and Claims

Respondent

President of the Republic of South Africa

Respondent

Minister of Provincial Affairs and Local Government

Respondent

Thulare Victor Thulare

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the Commission on Traditional Leadership Disputes and Claims had the competence to investigate and decide the claims regarding the Bapedi Kingship.
  2. 2 Whether the doctrine of res judicata barred the Commission from considering the claims previously litigated.
  3. 3 Whether the Commission's finding that the appointment of KK Sekhukhune as Acting Kgosikgolo was irregular and not in line with Bapedi customs was lawful.

Ratio Decidendi

The court held that the Commission on Traditional Leadership Disputes and Claims was constitutionally and statutorily empowered to investigate and resolve disputes regarding the Bapedi Kingship, including claims previously litigated under pre-constitutional law. The doctrine of res judicata, while promoting finality, cannot be rigidly applied where it would perpetuate injustice or conflict with constitutional imperatives. The Commission's findings regarding the rightful heir to the Bokgosi, the validity of KK Sekhukhune's appointment, and the succession of Victor Thulare were based on a thorough investigation of Bapedi customs and were not barred by previous judicial decisions. The...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicants are ordered to pay the costs of the Respondents, including the costs occasioned by the employment of two counsel.