Mogoboya and Others v Mogoboya and Others (8797/2023) [2023] ZALMPPHC 99 (23 October 2023)

Mogoboya and Others v Mogoboya and Others (8797/2023) [2023] ZALMPPHC 99 (23 October 2023)

The court found that the applicants were duly appointed council members with a term expiring at the end of 2024 and had peaceful possession of the council offices, keys, laptop, and cell phone. Their removal was effected by force and intimidation, without due process or consent, and accompanied by threats of criminal charges. The court held that the applicants' right to access and occupation of the council offices constitutes quasi-possession protected by mandament van spolie. The respondents failed to show that due process was followed in dissolving the council or removing the applicants. The applicants did not voluntarily relinquish possession, and the respondents' conduct amounted to...

Citation
[2023] ZALMPPHC 99
Parties
Applicant: Malesele Patrick Mogoboya; Applicant: Mogotlo Alpheus Mogoboya; Applicant: Mahlolo Peter Mogoboya; Applicant: Jack Matlhane Mogoboya; Applicant: Mahlolo William Mogoboya; Applicant: Taolo Joseph Lemao; Applicant: Romeo Mogale; Applicant: Mmatlou Salome Mashabela; Applicant: Bathabine Traditional Council; Applicant: Batlhabine Royal Family; Respondent: Masibele Jack Mogoboya; Respondent: Samuel Mphafudi Malatji; Respondent: Mashile Frans Phalane; Respondent: Thabe Phalane; Respondent: Mekia Phalane; Respondent: Isaac Phalane; Respondent: Norman Mogoboya; Respondent: Bethuel Matshitela; Respondent: Mamaroba Godfrey Matshitela; Respondent: Thabe Matshitela; Respondent: Samuel Mogoboya; Respondent: Ramape Mogoboya; Respondent: Jerimia Phalane; Respondent: Mogoboye Phalane; Respondent: Solly Matshitela; Respondent: Standard Bank Limited of SA; Respondent: Greater Tzaneen Local Municipality
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
23 October 2023
Case Number
8797/2023
Procedural Posture
Urgent Application / Final Determination
Outcome
Application granted. The respondents are ordered to restore occupation and access to the applicants and pay costs.
Judges
Kganyago
Legal Topics
Mandament Van Spolie, Unlawful Dispossession, Traditional Leadership, Council Dissolution, Quasi Possession
Civil Procedure Land and Property Mandament Van Spolie Unlawful Dispossession Traditional Leadership Council Dissolution Quasi Possession

Case Brief

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Parties

Malesele Patrick Mogoboya

Applicant

Mogotlo Alpheus Mogoboya

Applicant

Mahlolo Peter Mogoboya

Applicant

Jack Matlhane Mogoboya

Applicant

Mahlolo William Mogoboya

Applicant

Taolo Joseph Lemao

Applicant

Romeo Mogale

Applicant

Mmatlou Salome Mashabela

Applicant

Bathabine Traditional Council

Applicant

Batlhabine Royal Family

Applicant

Masibele Jack Mogoboya

Respondent

Samuel Mphafudi Malatji

Respondent

Mashile Frans Phalane

Respondent

Thabe Phalane

Respondent

Mekia Phalane

Respondent

Isaac Phalane

Respondent

Norman Mogoboya

Respondent

Bethuel Matshitela

Respondent

Mamaroba Godfrey Matshitela

Respondent

Thabe Matshitela

Respondent

Samuel Mogoboya

Respondent

Ramape Mogoboya

Respondent

Jerimia Phalane

Respondent

Mogoboye Phalane

Respondent

Solly Matshitela

Respondent

Standard Bank Limited of SA

Respondent

Greater Tzaneen Local Municipality

Respondent

Procedural Posture

Urgent Application / Final Determination

Legal Issues

  1. 1 Whether the applicants were unlawfully dispossessed of their occupation and access to the Batlhabine traditional council offices.
  2. 2 Whether mandament van spolie is available as a remedy for dispossession of council membership and access to council premises.
  3. 3 Whether due process was followed in the removal and dissolution of the council.

Ratio Decidendi

The court found that the applicants were duly appointed council members with a term expiring at the end of 2024 and had peaceful possession of the council offices, keys, laptop, and cell phone. Their removal was effected by force and intimidation, without due process or consent, and accompanied by threats of criminal charges. The court held that the applicants' right to access and occupation of the council offices constitutes quasi-possession protected by mandament van spolie. The respondents failed to show that due process was followed in dissolving the council or removing the applicants. The applicants did not voluntarily relinquish possession, and the respondents' conduct amounted to...

Court Disposition

Application granted. The respondents are ordered to restore occupation and access to the applicants and pay costs.

Orders

  • The first to fifteenth respondents must restore to the applicants their respective occupation as councillors of Batlhabine traditional council.
  • The applicants must be given full access to the Batlhabine royal offices at Mosoroni village, Ga-Mogoboya, by handing over all keys to the applicants' attorneys of record.