Makhubela v Stellenbosch District Municipality (20830/22) [2023] ZAWCHC 74 (17 April 2023)

Makhubela v Stellenbosch District Municipality (20830/22) [2023] ZAWCHC 74 (17 April 2023)

The court found that the respondent's answering affidavit, even if defective in attestation, did not prejudice the applicant as the matter was decided on the papers and the respondent's denials were uncreditworthy and speculative. The law relating to mandament van spolie was correctly applied, and the applicant and others were found to have been unlawfully deprived of possession and access to the initiates. The definitions in the Customary Initiation Act did not extend far enough to cover the broader access sought by the applicant, but the central issue was access for training, monitoring, evaluation, and assessment, not admission or child protection. The conduct of the respondent and its...

Citation
[2023] ZAWCHC 74
Parties
Applicant: Rashid Makhubela; Respondent: Stellenbosch District Municipality
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 April 2023
Case Number
20830/22
Procedural Posture
Leave to Appeal / Application for Leave to Appeal
Outcome
Application for leave to appeal dismissed with costs.
Judges
Thulare
Legal Topics
Mandament Van Spolie, Customary Initiation Act, Access to Initiates, Affidavit Attestation
Civil Procedure Land and Property Mandament Van Spolie Customary Initiation Act Access to Initiates Affidavit Attestation

Case Brief

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Parties

Rashid Makhubela

Applicant

Stellenbosch District Municipality

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal

Legal Issues

  1. 1 Whether leave to appeal should be granted against the order mandating access to initiates at Idas Valley.
  2. 2 Whether the respondent's answering affidavit was properly attested and its impact on the proceedings.
  3. 3 Whether the law relating to mandament van spolie was correctly applied.

Ratio Decidendi

The court found that the respondent's answering affidavit, even if defective in attestation, did not prejudice the applicant as the matter was decided on the papers and the respondent's denials were uncreditworthy and speculative. The law relating to mandament van spolie was correctly applied, and the applicant and others were found to have been unlawfully deprived of possession and access to the initiates. The definitions in the Customary Initiation Act did not extend far enough to cover the broader access sought by the applicant, but the central issue was access for training, monitoring, evaluation, and assessment, not admission or child protection. The conduct of the respondent and its...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.