South Africa: North West High Court, Mafikeng

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

                                                                                                                        M218/2019

In the matter between:

TSHENG NKAGISANG                                       APPELLANT

And

OTHUSITSE MATSAUNYANE                           RESPONDENT

REVIEW JUDGMENT

DJAJE ADJP

[1]        This matter came before me on special review with the following remarks from the Presiding Magistrate:

“Dear Madam

In Re: - Tribal Appeal: - N Tsheng vs O Matsaunyane

The abovementioned matter came before me as an appeal against a decision by the Barolong Boo Ratshidi Traditional Court in terms of Section 29 A of the Magistrates Court Act 32 of 1944 read with Bophuthatswana Traditional Courts Act 29 of 1979.

After finalization of the appeal I realized that I have committed serious irregularities by not presiding together with two assessors as requires by section 9 (1)(b) of the Bophuthatswana Traditional Courts Act and by furthermore not explaining to the (unrepresented) parties their right to appeal after conclusion of the matter.

I hereby humbly apologize for my oversight and error and humbly request assistance from a higher authority.”

[2]        It is clear from the above that the Magistrate in dealing with the appeal, did not comply with the provisions of section 9 (1) (b) of the Bophutatswana Traditional Courts Act 29 of 1979 (“the Act”). Section 9 (1) (b) of the Act provides that:

            “9.        Appeal from tribal court

(1)(a)   There shall in each district be a special court, consisting of the Magistrate of such district as well as two additional members appointed under paragraph (b), which shall, as court of appeal, hear and, subject to the provisions of subsection (3), determine, any appeal brought in terms of subsection (2) against any decision, jurisdiction of which is situate within such district.”

[3]        The provisions of the Act are peremptory and non-compliance with this section in an appeal from the tribal court, renders the proceedings irregular and not in accordance with justice. The parties to the proceedings were not legally represented and could not have waived their rights. In my view the appeal proceedings stand to be set aside and the matter should be remitted to the District Court to start de novo before a differently constituted court.

[4]        In the result the following order is made:

1.         The proceedings in Case No. 489/17 are hereby reviewed and set aside.

2.         The matter is remitted to the District Court, Molopo to start de novo before a differently constituted court.

______________________

J. T. DJAJE

ACTING DEPUTY JUDGE PRESIDENT

OF THE HIGH COURT

I AGREE

________________________

R D HENDRICKS

JUDGE OF THE HIGH COURT

DATE: 25 APRIL 2019