Mkhari and Another v Chairperson of the Ad Hoc Panel on the Restoration of the Vatsonga Kingship Claim and Others (38689/2022) [2024] ZAGPPHC 658 (1 July 2024)

Mkhari and Another v Chairperson of the Ad Hoc Panel on the Restoration of the Vatsonga Kingship Claim and Others (38689/2022) [2024] ZAGPPHC 658 (1 July 2024)

The court found that the October Report issued by the Ad-hoc Panel was unlawful and invalid as the Panel had become functus officio upon issuing the July Report. The October Report was therefore reviewable under the principle of legality. The fourth respondent's decision of 19 February 2022, which relied on the October Report, was also unlawful and invalid, as its legal foundation was vitiated by the invalidity of the October Report. Even if the October Report's invalidity did not vitiate the decision, the fourth respondent took irrelevant considerations into account, namely the October Report, which is a ground for review under PAJA. The appropriate relief was to remit the matter to the...

Citation
[2024] ZAGPPHC 658
Parties
Applicant: Rismati Wilson Mkhari; Applicant: Mkhari Royal Family; Respondent: Chairperson of the Ad Hoc Panel on the Restoration of the Vatsonga Kingship Claim; Respondent: Shirhami Shirinda; Respondent: Zamokuhle BM Mopai; Respondent: President of the Republic of South Africa; Respondent: Minister of Cooperative Governance and Traditional Affairs; Respondent: Director General: Department of Cooperative Governance and Traditional Affairs; Respondent: Hlekani Samuel Mukhari; Respondent: Njhakanjhaka Traditional Council; Respondent: Sikheto Thomas Mukhari; Respondent: Khensani Traditional Council
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 July 2024
Case Number
38689/2022
Procedural Posture
Review Application / Judgment After Opposed Motion
Outcome
Application granted; October Report and fourth respondent's decision set aside; matter remitted for reconsideration; costs awarded to applicants.
Judges
CP Wesley
Legal Topics
Promotion of Administrative Justice Act, Principle of Legality, Functus Officio, Review of Administrative Action, Traditional Leadership Claims
Administrative Law Civil Procedure Promotion of Administrative Justice Act Principle of Legality Functus Officio Review of Administrative Action Traditional Leadership Claims

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Parties

Rismati Wilson Mkhari

Applicant

Mkhari Royal Family

Applicant

Chairperson of the Ad Hoc Panel on the Restoration of the Vatsonga Kingship Claim

Respondent

Shirhami Shirinda

Respondent

Zamokuhle BM Mopai

Respondent

President of the Republic of South Africa

Respondent

Minister of Cooperative Governance and Traditional Affairs

Respondent

Director General: Department of Cooperative Governance and Traditional Affairs

Respondent

Hlekani Samuel Mukhari

Respondent

Njhakanjhaka Traditional Council

Respondent

Sikheto Thomas Mukhari

Respondent

Khensani Traditional Council

Respondent

Procedural Posture

Review Application / Judgment After Opposed Motion

Legal Issues

  1. 1 Whether the October Report issued by the Ad-hoc Panel is lawful and valid.
  2. 2 Whether the fourth respondent's decision of 19 February 2022 declining the Vatsonga Kingship claim is lawful and valid.
  3. 3 Whether the October Report and the fourth respondent's decision are susceptible to review under PAJA or the principle of legality.

Ratio Decidendi

The court found that the October Report issued by the Ad-hoc Panel was unlawful and invalid as the Panel had become functus officio upon issuing the July Report. The October Report was therefore reviewable under the principle of legality. The fourth respondent's decision of 19 February 2022, which relied on the October Report, was also unlawful and invalid, as its legal foundation was vitiated by the invalidity of the October Report. Even if the October Report's invalidity did not vitiate the decision, the fourth respondent took irrelevant considerations into account, namely the October Report, which is a ground for review under PAJA. The appropriate relief was to remit the matter to the...

Court Disposition

Application granted; October Report and fourth respondent's decision set aside; matter remitted for reconsideration; costs awarded to applicants.

Orders

  • The October Report dated 29 October 2021 is declared unlawful and invalid and is reviewed and set aside.
  • The fourth respondent's decision of 19 February 2022 declining the Vatsonga Kingship claim is declared unlawful and invalid and is reviewed and set aside.