The case arose from a long-standing dispute over the recognition of the Kgoshi (traditional leader) of the Babirwa BaGa Mamadi traditional community in Limpopo. The first applicant, Mr Madidimalo Kislon Mamadi, and the Mamadi Royal Family sought to review and set aside decisions of the Premier of Limpopo recognising the fifth respondent, Mr Aborekwe Thomas Mamadi, as acting Kgoshi, and the recommendations of the Commission on Traditional Leadership Disputes and Claims (Kgatla Commission), which rejected the first applicant’s claim to the position. The dispute centred on competing genealogies under customary law. The applicants alleged that the Commission’s report was irrational, unlawful and procedurally unfair, and that the Premier acted ultra vires the Limpopo Traditional Leadership and Institution Act in refusing to recognise the first applicant and in appointing the fifth respondent. The High Court dismissed the review application on the basis that there were disputes of fact reasonably foreseeable and irresoluble on the papers, holding that the matter should have been brought by way of action and refusing a referral to oral evidence. The applicants sought leave to appeal to the Constitutional Court.
Leave to appeal was granted. The appeal was upheld and the High Court’s order was set aside. The matter was remitted to the High Court for trial before a different judge. The applicants’ supplementary notice of motion was ordered to stand as a simple summons, with directions for the delivery of pleadings. Costs of the appeal in the High Court, Supreme Court of Appeal, and Constitutional Court were awarded against the first, second, third, fifth and sixth respondents.
The judgment is significant for clarifying the procedural approach to disputes of fact in rule 53 review applications. It affirms that courts must exercise the wide discretion conferred by rule 6(5)(g) in a manner consistent with constitutional rights, and that review applicants should not lightly be non-suited for foreseeable disputes of fact. The case strengthens access to courts and the effective vindication of the right to just administrative action, and cautions against an overly rigid procedural approach that would force litigants to restart proceedings.