05 Nov 2017

Former chief’s representative for Bobonong in the Babirwa area, Mr Mmirwa Malema and his son Letso Malema have lost with costs a case in which they had approached Court of Appeal seeking expedited hearing of their appeal against a decision of the High Court delivered on September 20, 2017.

In that matter, applicants had approached the High Court on a certificate of urgency seeking an interim order interdicting the appointment and/or recognition and/or installation of the last three respondents in the matter being Ezekiel Joel, Dimakatso Patane and Onkemetse Serumola, as chief’s representative and other positions respectively in bogosi of Babirwa tribal community.

The interim order is sought pending the determination of the judicial review application which the applicants intend to launch challenging those respondents’ appointment.

However the review application is still to be launched to-date, observed the Justice Isaac Lesetedi, noting that the three respondents were appointed prior to launching of that urgent application.

Nevertheless the respondents, who include Attorney General, Sediegeng Kgamane and Minister of Local Government and Rural Development, opposed the application on urgency points of law and on its merits.

The points of law and issue or urgency were styed “points in limine”. 

Consequently the High Court dismissed the application after dealing with and upholding the points in limine which had been raised.

It noted that the applicants had failed to establish that they had locus standi to move the application and also that the jurisdiction of the court to entertain the matters raised in the application was ousted by Section 27(1) and (2) of the Bogosi Act as well as that the application was not urgent.

The first applicant, Mmirwa Malema, was until September 2016, holder of the office of Moemela Kgosi in the Bobirwa district.

He ascended to the position in 1972 after having been elected by the community at a kgotla meeting.

In early 2016, he expressed his intention to retire and to appoint his son Letso as his successor, contending that he was hereditary tribal leader of the Babirwa community and that by virtue of the customs and practices of the Babirwa community he had the right to designate his son his successor.   

However, a kgotla meeting convened by a team of traditional leaders from Serowe on February 15, 2017 in Bobonong was overwhelmingly given the names of the last three respondents to appoint and the names were duly passed to the ministry which confirmed their appointments early August 2017, which is now being challenged.

Likewise the Court of Appeal concurred with the decision of the High Court holding that the applicants failed to satisfy the three points raised.

In addition it said the applicants have also failed to show the basis of any urgency when one has regard to all the points discussed.

However, the dismissal of the interdict application on the ground of urgency does not affect the applicants’ right to institute the review application within the legal time limits, the ruling read. ENDS