Tema and Others v Limpopo Head of Department for Health and Others (4292/2022) [2023] ZALMPPHC 19 (3 May 2023)

Tema and Others v Limpopo Head of Department for Health and Others (4292/2022) [2023] ZALMPPHC 19 (3 May 2023)

The court found that the applicants had established, on a balance of probabilities, that the human remains found near Mamaolo village are those of Motswiri Jackson Tema. The unique visual features, including the metal implant and crutch, were confirmed by hospital records and admitted by the respondents. DNA test results were inconclusive and did not exclude the relationship. The regulatory framework allows for visual identification where possible, and the applicants' evidence satisfied this requirement. The respondents failed to demonstrate prejudice regarding non-joinder of the Member of the Executive Council. The applicants were entitled to the relief sought, including the declaration...

Citation
[2023] ZALMPPHC 19
Parties
Applicant: Mpshe Gilbert Tema; Applicant: Makgafele Mavis Tema; Applicant: Rapahaahle Emly Mphahlele; Respondent: Limpopo Head of Department for Health; Respondent: Limpopo Head of Department for Safety and Security; Respondent: Director General Department of Home Affairs; Respondent: Lebowakgomo Police Station Commander
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
3 May 2023
Case Number
4292/2022
Procedural Posture
Review Application / Judgment
Outcome
Application granted in favour of the applicants.
Judges
M V Semenya
Legal Topics
Identification of Human Remains, Death Certificate Issuance, Visual Identification, Scientific Evidence, Non Joinder, Costs Award
Administrative Law Civil Procedure Identification of Human Remains Death Certificate Issuance Visual Identification Scientific Evidence Non Joinder Costs Award

Case Brief

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Parties

Mpshe Gilbert Tema

Applicant

Makgafele Mavis Tema

Applicant

Rapahaahle Emly Mphahlele

Applicant

Limpopo Head of Department for Health

Respondent

Limpopo Head of Department for Safety and Security

Respondent

Director General Department of Home Affairs

Respondent

Lebowakgomo Police Station Commander

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the human remains found near Mamaolo village are those of Motswiri Jackson Tema.
  2. 2 Whether the applicants are entitled to a declaration of identity, release of remains, and issuance of a death certificate.
  3. 3 Whether scientific and visual identification methods satisfy the regulatory requirements.

Ratio Decidendi

The court found that the applicants had established, on a balance of probabilities, that the human remains found near Mamaolo village are those of Motswiri Jackson Tema. The unique visual features, including the metal implant and crutch, were confirmed by hospital records and admitted by the respondents. DNA test results were inconclusive and did not exclude the relationship. The regulatory framework allows for visual identification where possible, and the applicants' evidence satisfied this requirement. The respondents failed to demonstrate prejudice regarding non-joinder of the Member of the Executive Council. The applicants were entitled to the relief sought, including the declaration...

Court Disposition

Application granted in favour of the applicants.

Orders

  • It is declared that the human remains found in the periphery of Mamaolo village and currently stored in a Government mortuary under Lebowakgomo Police CAS number 281/05/2021 and marked LIM03/216/2021 are those of Motswiri Jackson Tema.
  • The first and second respondents are jointly ordered to release and/or cause to be released the said human remains into the care of the applicants within five days of this order.