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REPUBLI C OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 8122/2017
(1)
(2)
(3) REPORTABLE : YES/NO
OF INTEREST TO THE JUDGES : YES/NO
REVISED.
In the matter between:
MATOME CHARLES MALATJI
And
THE CHAIRMAN: KGATLA COMMISSION
MOSIBUTJANE SHAYI
MEC: CO-OPERATIVE GOVERNANCE, HUMAN
SETTLEMENTS AND TRADITIONAL AFFAIRS
THE PREMIER: LIMPOPO PROVINCE
THE COMMISSION ON TRADITIONAL
AFFAIRS, LEADERSHIP DISPUTES AND
CLAIMS: LIMPOPO Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Delivered: This judgment is handed down electronically by circulation to the parties
through their legal representatives' email addresses. The date for the hand-down is
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deemed to be 01 April 2025.
JUDGMENT
MAKOTI AJ
Introduction
[1] The applicant was unsuccessful in his review application. It was on two
bases: first, on the basis that I found the commission to have engaged itself
appropriately to the enquiry that lay before it when investigating his claim for
chieftainship; and, second, on the applicability of the Promotion of
Administrative Justice Act1 (PAJA).
[2] He seek to overturn my judgment on both of the findings that I have
foreshadowed above.
Principles for leave to appeal
[3] Leave to appeal is granted where the court reaches the conclusion that the
application would have reasonable prospects of success.2 This was the
finding in S v Smith3 where the court had an opportunity to answer what
constitutes reasonable prospects of success and it came to the conclusion
that:
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3 "What the test of reasonable prospects of success postulates ~
dispassionate decision, based on the facts and the law that a court of appeal
could reasonably arrive at a conclusion different to that of the trial court. In
Act No. 3 of 2000.
S 17(1) of the Superior Courts Act No. 10 of 2013.
2012 (1) SACR 567 (SCA) 570 at para [7].
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order to succeed, therefore, the appellant must convince this court on proper
grounds that he has prospects of success on appeal and that those prospects
are not remote but have a realistic chance of succeeding. More is required to
be established than that there is a mere possibility of success, that the case is
arguable on appeal or that the case cannot be categorised as hopeless. There
must, in other words, be a sound, rational basis for the conclusion that there
are prospects of success on appeal." (Emphasis added)
[4] Court interpreted section 17(1 )(a)(i) of the Superior Courts Act,4 and opined
that leave to appeal may only be granted where a court is of the view that the
appeal would have reasonable prospects of success. The have concluded
that the phrase 'would have reasonable prospects of success' serves to
indicate some degree of certainty that the court of appeal would reach a
different conclusion on appeal.
[5] On this point the Supreme Court of Appeal in MEC for Health, Eastern Cape
v Mkhitha and Another5 held as follows:
"An applicant for leave to appeal must convince the court on proper grounds
that there is a reasonab le prospect or realistic chance of success on appeal. A
mere possibility of success, an arguable case or one that is not hopeless, is
not enough. There must be a sound, rational basis to conclude that there is a
reasonable prospect of success on appeal."
[6] These principles are settled. There is no need to add anything more.
Consideration of the application
[7] The applicant makes two compelling points which I believe require a relook.
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5 The first is on the applicability of the Promotion of Administrative Justice Act
to review the outcome of the Commission of Inquiry. I found, after
considering a number of authorities , that PAJA is not the appropriate route.
There are other cases which have been decided in terms of that statute. On
Act 10 of 2013.
[2016] ZASCA 176, para 17.
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this point I find that the appeal bears reasonable prospects of success.
[8] The second issue concerns the question whether the Commission conducted
its investigations properly. I found that the Commission acted appropriately
when conducting the investigations , which the applicant impugns. Here too,
the issue is about historical data which the applicant contends was not
properly considered by the Commission . Though the proscepcts of success
on this aspect are slim, I would grant leave to appeal on this issue as well.
Order
[9] I grant the following order:
[a] Leave to appeal is granted to the full bench of the Limpopo Division
of the High Court;
[b] Costs are in the appeal.
DATE HEARD:
JUDGMENT DELIVERED:
APPEARANCES
FOR APPLICANT MAKOTI MZ
ACTING JUDGE OF THE HIGH COURT,
POLOKWANE; LIMPOPO DIVISION
24 MARCH 2025
02 APRIL 2025
ADV AC DIAMOND
HAMMAN MOOSA ATTORNEYS
FIRST RESPONDENT
SECOND RESPONDENT 5
C/O CHAYYA ATTORNEYS
POLOKWANE
ADV NE GAISA
OFFICE OF THE STATE ATTORNEYS
POLOKWANE
ADV MD MOHLAMONYANE SC; with
MH MPHAHLELE
TC PILUSA ATTORNEYS
C/O MAKGOBA KGOMO MAKGALENG INC
POLOKWANE