Mogale v Maakane and Others (1106/2010) [2010] ZANWHC 18 (29 July 2010)

Mogale v Maakane and Others (1106/2010) [2010] ZANWHC 18 (29 July 2010)

The court found that the applicant failed to establish a clear right or injury justifying a final interdict against the respondents. The attempt to dissolve the traditional council was of no legal effect, as a traditional council is a permanent institution whose membership terminates only in specific circumstances prescribed by statute. The Premier's notice reconstituting the traditional council was unauthorized and defective, having been issued outside the prescribed period and failing to comply with gender representation requirements. However, in the absence of a proper application to set aside the Premier's decision, it remains standing, albeit fatally defective. The counter...

Citation
[2010] ZANWHC 18
Parties
Applicant: Kgosi Bop Edward Mogale; Respondent: Thsepo Maakane; Respondent: Peter Maimane; Respondent: Josia Lekoane; Respondent: Daniel Modisanyane; Respondent: Billy Molotsane; Respondent: Motlalepule Mathebe; Respondent: Wonder Mosina; Respondent: Leslely Kgobane; Respondent: Margaret Sikwane; Respondent: Omphile Maake; Respondent: Amanda Nthadi; Respondent: Benson Maakane; Respondent: J R Moerane; Respondent: J G Mogale; Respondent: L Maimane; Respondent: N Mokomele; Respondent: O A Molotsane; Respondent: M J Mogale; Respondent: S Mogale; Respondent: M M Petlele; Respondent: J D Modisakeng; Respondent: M Makwe; Respondent: M D Raleru; Respondent: Mr Magwete; Respondent: Ms Kwapeng; Respondent: E R Mogale; Respondent: The Premier: North West Province; Respondent: The Traditional Authority of the Bapo Ba Mogale Tribe
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
29 July 2010
Case Number
1106/2010
Procedural Posture
Urgent Application / Return Date of Rule Nisi for Interdict and Counter Application for Declaration
Outcome
The rule nisi is discharged with costs; the counter application is dismissed with costs, including costs of two counsel for the applicant and the Premier. Costs of the applications to strike out are awarded against the applicant. Costs of the counter application are to be paid jointly and severally by those who...
Judges
A A Landman
Legal Topics
Traditional Leadership and Governance, Interdict, Joinder and Non Joinder, Promotion of Administrative Justice Act, Transitional Provisions, Locus Standi
Administrative Law Land and Property Civil Procedure Traditional Leadership and Governance Interdict Joinder and Non Joinder Promotion of Administrative Justice Act Transitional Provisions +1 more

Case Brief

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Parties

Kgosi Bop Edward Mogale

Applicant

Thsepo Maakane

Respondent

Peter Maimane

Respondent

Josia Lekoane

Respondent

Daniel Modisanyane

Respondent

Billy Molotsane

Respondent

Motlalepule Mathebe

Respondent

Wonder Mosina

Respondent

Leslely Kgobane

Respondent

Margaret Sikwane

Respondent

Omphile Maake

Respondent

Amanda Nthadi

Respondent

Benson Maakane

Respondent

J R Moerane

Respondent

J G Mogale

Respondent

L Maimane

Respondent

N Mokomele

Respondent

O A Molotsane

Respondent

M J Mogale

Respondent

S Mogale

Respondent

M M Petlele

Respondent

J D Modisakeng

Respondent

M Makwe

Respondent

M D Raleru

Respondent

Mr Magwete

Respondent

Ms Kwapeng

Respondent

E R Mogale

Respondent

The Premier: North West Province

Respondent

The Traditional Authority of the Bapo Ba Mogale Tribe

Respondent

Procedural Posture

Urgent Application / Return Date of Rule Nisi for Interdict and Counter Application for Declaration

Legal Issues

  1. 1 Whether the applicant is entitled to a final interdict against the respondents regarding the governance of the Bapo Ba Mogale Tribe.
  2. 2 Whether the Traditional Authority continues to exist or has been lawfully reconstituted as a traditional council under applicable legislation.
  3. 3 Whether the Premier's notice reconstituting the traditional council was valid and complied with statutory requirements.

Ratio Decidendi

The court found that the applicant failed to establish a clear right or injury justifying a final interdict against the respondents. The attempt to dissolve the traditional council was of no legal effect, as a traditional council is a permanent institution whose membership terminates only in specific circumstances prescribed by statute. The Premier's notice reconstituting the traditional council was unauthorized and defective, having been issued outside the prescribed period and failing to comply with gender representation requirements. However, in the absence of a proper application to set aside the Premier's decision, it remains standing, albeit fatally defective. The counter...

Court Disposition

The rule nisi is discharged with costs; the counter application is dismissed with costs, including costs of two counsel for the applicant and the Premier. Costs of the applications to strike out are awarded against the applicant. Costs of the counter application are to be paid jointly and severally by those who...

Orders

  • The applicant is to pay the costs associated with the abandoned application to strike out.
  • The two applications to strike out are granted with costs to be paid by the applicant.