Maloko and Another v Mosimane and Others (1843/2011) [2013] ZANWHC 8 (31 January 2013)

Maloko and Another v Mosimane and Others (1843/2011) [2013] ZANWHC 8 (31 January 2013)

The court found that the first applicant was not misled or unduly induced to enter into the sale agreement; she knowingly participated in the transaction and received payment. However, under customary law and statutory provisions, tribal communal land cannot be privately sold or subdivided without the approval of the Traditional Council. The purported sale agreement was therefore void and unenforceable. The court declined to order eviction of the first respondent, considering the lack of restitution, the applicant's own involvement in the improper transaction, the respondent's substantial investment, and the broader context of dysfunctional administration and common improper land...

Citation
[2013] ZANWHC 8
Parties
Appellant: Keeleditse Martha Maloko; Appellant: Barolong Boo Tlou Tau Traditional Council; Respondent: Tebogo Mosimane; Respondent: Tsietso Piet Dirapedi; Respondent: Lazarus Mosimane
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
31 January 2013
Case Number
1843/2011
Procedural Posture
Civil Application / Judgment
Outcome
The sale agreement is declared void and unenforceable. No eviction is ordered. Each party is to pay its own costs.
Judges
Gura
Legal Topics
Customary Land Rights, Invalid Sale Agreement, Traditional Council Authority, Eviction, Unenforceable Contract, Tribal Land Disposal
Land and Property Civil Procedure Administrative Law Customary Land Rights Invalid Sale Agreement Traditional Council Authority Eviction Unenforceable Contract +1 more

Case Brief

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Parties

Keeleditse Martha Maloko

Appellant

Barolong Boo Tlou Tau Traditional Council

Appellant

Tebogo Mosimane

Respondent

Tsietso Piet Dirapedi

Respondent

Lazarus Mosimane

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the first applicant was misled or unduly induced to enter into the purported sale agreement.
  2. 2 Whether a sale, disposal or sub-division of land in a tribal communal area is valid without the authority of the Traditional Council.
  3. 3 Whether the applicants have made out a case for eviction of the first respondent.

Ratio Decidendi

The court found that the first applicant was not misled or unduly induced to enter into the sale agreement; she knowingly participated in the transaction and received payment. However, under customary law and statutory provisions, tribal communal land cannot be privately sold or subdivided without the approval of the Traditional Council. The purported sale agreement was therefore void and unenforceable. The court declined to order eviction of the first respondent, considering the lack of restitution, the applicant's own involvement in the improper transaction, the respondent's substantial investment, and the broader context of dysfunctional administration and common improper land...

Court Disposition

The sale agreement is declared void and unenforceable. No eviction is ordered. Each party is to pay its own costs.

Orders

  • The sale agreement of site No. 2650A, Complex Section, Ganyesa to the first respondent is void and unenforceable.
  • Each party is to pay its own costs.