Mafate and Another v Bapo Ba Mogale Traditional Council and Others (M596/16) [2018] ZANWHC 46 (4 October 2018)

Mafate and Another v Bapo Ba Mogale Traditional Council and Others (M596/16) [2018] ZANWHC 46 (4 October 2018)

The Council's decision to place the applicants on special leave constituted administrative action under PAJA and was subject to judicial review. The Council lacked lawful authority under the North West Traditional Leadership and Governance Act and the Framework Act to suspend or discipline elected members or place them on special leave. The decision was taken without notice, reasons, or an opportunity for the applicants to be heard, violating the audi alteram partem principle and procedural fairness as required by the Constitution and PAJA. Customary law cannot override these constitutional requirements. The Council's action was ultra vires, unlawful, and procedurally unfair, and must be...

Citation
[2018] ZANWHC 46
Parties
Applicant: Abbey Abram Mafate; Applicant: Tshepo Reiele Maakane; Respondent: The 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
4 October 2018
Case Number
M596/16
Procedural Posture
Review Application / Final Judgment
Outcome
Application granted; Council's decision set aside; applicants reinstated with immediate effect.
Judges
Gura
Legal Topics
Promotion of Administrative Justice Act, Legality Review, Customary Law and Constitution, Procedural Fairness, Ultra Vires Action
Administrative Law Constitutional Law Promotion of Administrative Justice Act Legality Review Customary Law and Constitution Procedural Fairness Ultra Vires Action

Case Brief

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Parties

Abbey Abram Mafate

Applicant

Tshepo Reiele Maakane

Applicant

The Bapo Ba Mogale Traditional Council

Respondent

Kgosi Bob Edward Mogale

Respondent

Premier of the North West Province

Respondent

Procedural Posture

Review Application / Final Judgment

Legal Issues

  1. 1 Whether the Council's decision to place the applicants on special leave constituted administrative action subject to review under PAJA.
  2. 2 Whether the Council had lawful authority to suspend or place elected members on special leave under the applicable legislation.
  3. 3 Whether the Council's decision was procedurally and substantively fair in terms of the Constitution and PAJA.

Ratio Decidendi

The Council's decision to place the applicants on special leave constituted administrative action under PAJA and was subject to judicial review. The Council lacked lawful authority under the North West Traditional Leadership and Governance Act and the Framework Act to suspend or discipline elected members or place them on special leave. The decision was taken without notice, reasons, or an opportunity for the applicants to be heard, violating the audi alteram partem principle and procedural fairness as required by the Constitution and PAJA. Customary law cannot override these constitutional requirements. The Council's action was ultra vires, unlawful, and procedurally unfair, and must be...

Court Disposition

Application granted; Council's decision set aside; applicants reinstated with immediate effect.

Orders

  • The first respondent's decision to place the applicants on special leave is reviewed and set aside.
  • The first respondent is directed to permit the applicants to attend and participate in its meetings.