Mafate and Another v Bapo Ba Mogale Traditional Council and Others (M139/2015) [2016] ZANWHC 44 (22 September 2016)

Mafate and Another v Bapo Ba Mogale Traditional Council and Others (M139/2015) [2016] ZANWHC 44 (22 September 2016)

The court found that the First Respondent, as a traditional council, is an organ of state exercising public power and performing a public function in terms of legislation. The decision to suspend the Applicants constituted administrative action as defined by PAJA. The court held that the First Respondent was not authorised by any empowering statute or by-laws to suspend members of the council or subject them to disciplinary processes. The Respondents failed to provide evidence of any internal remedies or council by-laws empowering such suspension. The delay in instituting proceedings was reasonably explained by the Applicants' lack of resources, and the court extended the period in the...

Citation
[2016] ZANWHC 44
Parties
Applicant: Abbey Abram Mafate; Applicant: Tshepo Releie Maakane; Respondent: Bapo Ba Mogale Traditional Council; Respondent: Kgosi Bob Edward Mogale; Respondent: Premier of the North West Province
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
22 September 2016
Case Number
M139/2015
Procedural Posture
Review Application / Judgment
Outcome
Application granted; decisions to suspend Applicants reviewed and set aside; Applicants reinstated; remuneration to be paid; costs awarded against First and Second Respondents.
Judges
DJAJE
Legal Topics
Promotion of Administrative Justice Act, Judicial Review, Traditional Leadership Governance, Procedural Fairness
Administrative Law Civil Procedure Promotion of Administrative Justice Act Judicial Review Traditional Leadership Governance Procedural Fairness

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

Abbey Abram Mafate

Applicant

Tshepo Releie Maakane

Applicant

Bapo Ba Mogale Traditional Council

Respondent

Kgosi Bob Edward Mogale

Respondent

Premier of the North West Province

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the suspension of the Applicants by the First Respondent was lawful and in accordance with the Promotion of Administrative Justice Act.
  2. 2 Whether the First Respondent was authorised by statute or by-laws to suspend members of the traditional council.
  3. 3 Whether the Applicants exhausted internal remedies before approaching the court.

Ratio Decidendi

The court found that the First Respondent, as a traditional council, is an organ of state exercising public power and performing a public function in terms of legislation. The decision to suspend the Applicants constituted administrative action as defined by PAJA. The court held that the First Respondent was not authorised by any empowering statute or by-laws to suspend members of the council or subject them to disciplinary processes. The Respondents failed to provide evidence of any internal remedies or council by-laws empowering such suspension. The delay in instituting proceedings was reasonably explained by the Applicants' lack of resources, and the court extended the period in the...

Court Disposition

Application granted; decisions to suspend Applicants reviewed and set aside; Applicants reinstated; remuneration to be paid; costs awarded against First and Second Respondents.

Orders

  • The decision by the First Respondent on 1 July 2014 to suspend the First Applicant is reviewed and set aside.
  • The decision by the First Respondent to suspend the Second Applicant is reviewed and set aside.