Leboho and Others v Premier of Limpopo Province and Others (37898/07) [2011] ZAGPPHC 22 (28 January 2011)

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[2011] ZAGPPHC 22
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Leboho and Others v Premier of Limpopo Province and Others (37898/07) [2011] ZAGPPHC 22 (28 January 2011)

REPORTABLE
IN
THE HHGHTCOURT OF SOUTH AFRICA
NORTHGAUTENG
HIGH COURTS
CASE
NO: 37898/07
DATE:
28/01/2011
In
the matter between:
NGAKO
ISAAC
LEBOHO
....................................................................
FIRST
APPLICANT
NTIKANE
PHILLIP LEBOHO
….....................................................
SECOND
APPLICANT
NGAKO
RICHARD LEBOHO
….........................................................
THIRD
APPLICANT
MATOME
WILSON LEBOHO
…....................................................
FOURTH
APPLICANT
NTSIHEISENG
PETER LEBOHO
…...................................................
FIFTH
APPLICANT
And
PREMIER
OF LIMPOPO PROVINCE
….......................................
FIRST
RESPONDENT
TLABO
JOSEPH LEBOHO
…...................................................
SECOND
RESPONDENT
TLHATLUDI
LEBOHO
…...............................................................
THIRD
RESPONDENT
GILBERT
MALEBOHO
….........................................................
FOURTH
RESPONDENT
FRANS
LEBOHO
….......................................................................
FIFTH
RESPONDENT
JUDGMENT
RAULINGA
J
INTRODUCTION
1.
This is a review application that was referred to trial. For the sake
of convenience the parties will be referred to as Applicants
and
Respondents. The Applicants seek an order in the following terms:
1.1
that the First Respondent's official recognition of the Second
Respondent, Tlabo Joseph Leboho, as Chief or " Kgoshi"
of
the Bahananwa Traditional Community with effect from the 6
th
September 2006 per decision No 123/2006, be reviewed and set aside or
corrected.
1.2That
the First Respondent's official recognition of the Second Respondent,
Tlabo Joseph Leboho, as the Chief or "Kgoshi"
of the
Bahananwa Traditional Community with effect from the 6
th
September 2006 per decision No 123/2006 be declared null and void.
1.3That
it be declared that the First Applicant Ngako Isaac Leboho, is the
rightful and legitimate successor and heir of the deceased
Chief or
"Kgoshi" Seiphi of the Bahananwa Traditional Community and
the person who qualifies in terms of the customary
law of the
Bahananwa Traditional Community to be officially recognised as the
Chief or "Kgoshi" of the Bahananwa Traditional
Community in
terms of Section 12 of the Limpopo Traditional Leadership and
Institutions Act 6 of 2005 read with
Section 11
of the
Traditional
Leadership and Governance Framework Act 41 of 2003
.
1.4
That
the First and/or Second Respondent, either jointly or severally or
jointly and severally pay the costs of the Applicants on
a scale as
between attorney and client; and
1.5
That
such further and/or alternative relief be granted as the Honourable
Court deems just and equitable.
At
the pre-trial conference held on the 8
th
April 2010 the parties agreed that the main issues in this matter can
be formulated as follows:
1.
Whether
the said official recognition of the said Tlabo Joseph Leboho falls
to be set aside on the basis that:
1.1
the
Premier of Limpopo Province did not apply his mind properly to the
matter before him; and/or
1.2
the
Premier acted
ultra
vires
in
recognising the said Tlabo Joseph Leboho as the Chief or "Kgoshi"
of the Bahananwa Traditional Community; and
1.3
which
one of the two persons ( namely the said Tlabo Joseph Leboho or Ngako
Isaac Leboho) qualifies in terms of the customary law
of the
Bahananwa Traditional Community to assume the position of Chief or
"Kgoshi" of the Bahananwa Traditional Community.
[2]
Before summarising the oral evidence presented by the Applicants, I
wish to extend my gratitude to both Counsel for the Applicants
and
the Respondents for their well prepared heads of argument which were
very helpful in the preparation of this Judgment. I also
wish to
indicate that during the trial the term "Kgoshi" instead of
Chief or senior traditional leader was used in iine
with the original
meaning accorded to the status of the person occupying that office
according to the Bapedi Royal Customs. It
is my respectful view that
the use of any other term other than "Kgoshi" adulterates
the true meaning of that office.
(Bapedi is used in its generic form
which may refer to all so called Northern Sotho speaking people).
The
Applicants bore the onus to prove as well as the duty to begin. While
the Applicants presented oral evidence of a number of
witnesses, upon
the closure of the case for the Applicants, the Respondents closed
their case without tendering any evidence. Certain
documentary
evidence was submitted during the course of trial. I will refer to
some of these documents in this judgment.
THE
PLAINTIFF PRESENTED THE FOLLOWING EVIDENCE
:
Ntikane
Phillip Tshwenyegi Leboho
.
He
testified that he is the surviving most senior "Mokgoma" of
the Bahananwa Royal Council. At the initiation school he
was given
the name "Tshwenyegi". The traditional leader of the
initiation school was Molele who was also the leader of
the regiment.
He is the son of the late Chief'Kgoshi" Seiphi. Chief "Kgoshi"
Seiphi had (5) five wives, namely;
Mosima (the principal wife),
Mabojabogele (the witness's mother), Manakedi, Mathanti and Mamohale.
A principal wife within the
meaning of Bahananwa Royal Community is
the first wife and the bearer of the "Kgoshi". Mosima was
the rightful masechaba
to bear a "Kgoshi". Mosima had
children who died while they were still infants. He does not know
whether there were any
surviving children of Mosima who were still
alive at the time Seiphi died. He knew Mafori, she was the wife of
his father's younger
brother, one Wilson Matume Leboho.
When
Seiphi died, his wife Mosima reigned over the Bahananwa people.
However, Mosima did not reign for a long time, she was soon
replaced
by Matume Wilson Leboho after he was appointed as acting Chief
"Kgoshi". Matume was a Mokgoma.
The
Roya! family went to look for a "ngwetsi" a Tlhatswadirope,
for Mosima. This was the mother to Ngako. The witness's
grandmother
Manchaku and Mamphikela went to marry Mmangako as a ngwetsi to
Seiphi.
[3]
Matume was present when the discussions took place, Mosima was also
involved in the discussions. He did not take part in the
marriage,
but he was present when the matter was discussed. The principal wife
for the Bahananwa Tradititonal Community comes from
the Rangata
family. The Bahananwa approached the Rangata family who told them
that they had no daughter available. He does not
know what they
discussed thereafter.
Mmangako
comes from the Mokgobu family. She is the granddaughter of
Mamphikela. His grandfather was Rachahcha - Kgalushi who was
one of
the Chiefs" Dikgoshi" of Bahananwa. The great grandmother
of Mmangako was Mamphoku from Rangata. Mampuku was the
wife of
Rachacha – Kgalushi.
The
Bahananwa royal family paid five (5) head of cattle as magadi when
Mmangako was married. The cattle were paid over to Ramutla
from
Mokgobu. Once magadi were paid Mmangako moved into the roya! kraal.
She fell pregnant and gave birth to Ngako Isaac Leboho,
in order to
revive the house of his father, Seiphi. The witness regards Ngako
Isaac Leboho as his elder brother because he is a
"Kgoshi".
Matume was merely a seed-raiser. Ngako is his brother, his father's
son. He is son of Seiphi. Ngako is his
elder brother because he is a
"Kgoshi".
[4]
After the death of Matume Wilson Leboho, Matee Collins Leboho was
installed to act as "Kgoshi" on behalf of Ngako
Isaac
Leboho, because Ngako was still young and at school. Matee is the son
of Matume - and Mafori. Matume had other sons, but
his principal wife
had only daughters. Matee is Matume's oldest son. It is not possible
that a younger brother to Matee could become
a Kgoshi. After the
death of Matee they met as a Royal Council and agreed to install
Ngako as kgoshi although he was still at school.
Matee
was identified because he was the oldest son of Matume Wilson. After
the death of Matee, Ngako was supposed to have been installed.

However there were those who imposed upon the Royal Council that
Seraki should be recognised.
After
the death of a Kgoshi there is a mourning period of one year. It is
only after the expiry of a year that the Bahananwa Royal
Council
would identify a Kgoshi.
After
the death of Ben Seraki Leboho he was not present when the
discussions to identify Tlabo Joseph Leboho took place. Nobody

requested him to sign a document to confirm the identify of Tlaabo
Joseph Leboho as Kgoshi.
Mafori
is the wife of Matume. Mmatshaku is the wife of Mabea. Matume is the
son of Mabea. Mafori and Mmanchaku came from the Rangata
family.
Masechaba
is a queen - the Kgoshi's wife. A candle wife is a woman for whom
dowry has been paid. Neither Mafori nor Mmanchaku were
queens.
He
is a mokgoma. The meetings are called by the senior mokgoma, but in
this instance of Tlabo Joseph Leboho he did not call the
meetings.
Mmanchaku died before Matume died. Matume slaughtered a cow for the
cleansing ceremony of Mmanchaku. During that ceremony
Matume Wilson
told the gathering that the property of Mmachaku would be shared
between his two (2) wives, namely Mafori and Mamolatelo
and his
children.
Mmangako
would get her share from the royal property of the Bahananwa. The
rest of them did not get anything.
Under
cross-examination
He
can neither read nor write. He cannot see. Molele was a traditional
header.
When
the witness was referred to Exhibit "B" page 158, he
testified that Kgalushi is also known as Rachacha. He was the
leader
of a regiment called Makobi. Mabea was the leader of Marutla. His
father Seiphi was the leader of Ditlhage. Tlatlhudi was
the leader of
Madingwane. He led Molau whereas Matee Collin led Mapulana.
[5]
Masechaba is the wife who bears the future Kgoshi. The wive who bears
a Kgoshi comes from Rangata. His mother was not a masechaba
because
she did not come from Rangata family. Ngako's mother comes from
Mokgobu, because they could not find a nubile at Rangata.
She is a
grand-daughter of Leboho. A ngwetsi can be a masechaba. When Ngako's
mother was married she was a ngwetsi who was going
to be a masechaba.
Mmangako was married by Mamphikela and Manchaku to revive the house
of Mosima.
Seantlo
is a woman who gets married when the wife of that house has died in
order to revive that house. Ngwetsi is any woman who
is married into
a family. Tlhatswadirope is a woman who is married in order to bear
children for the principal wife. Ngako's mother
was a Seantlo. When a
house is revived the brother to the Kgoshi can procreate children
with a Seantlo.
Mosima
was a masechaba for Seiphi. She was from the Rangata family. When the
witness was referred to Bundle "B" page 173
- i.e. the
genealogy, he indicated that he had never seen the document before.
However
he conceded that Johannes Tau Molele had approached him. He does not
know if Molele is the one who prepared the genealogy,
(the witness
was also referred to Bundle A- page 36- the genealogy prepared by
Phakula S.G and Fambe S.P) Mosima gave birth to
children but they
died while still infants. When Mmangako was married Mosima was still
alive. Mosima participated in the decision
that Mmangako should
revive her house. Matume Wilson's mother came form Rangata. Mabea's
wife one Mmamoloko came from Rangata.
When Mmamoloko died they
married her sister Mmanchaku who came from Rangata.
[6]
When Mmangako was married Mafori was already married to Matume.
Mafori is a younger sister of Mosima - they both came from
Rangata.
When they went to look for a nubile at Rangata they could not get
Mosima's sister because Mafori was already married.
Mafori was
Motume's wife and not a Seantlo.
There
was a period when masechaba of the Bahananwa Royal Community came
from Morudu and later they came from Rangata. Kgalushi's
wife came
form Morudu.
Tlatludi
was a Mokgoma. He was the leader of the regiment called Madingwane.
Matume never led a regiment.
He
was not present when Tlabo Joseph Leboho was identified as a Kgoshi.
He does not know one Kekana.
He
was not present when Tlabo Joseph Leboho was introduced to the
Premier as a Kgoshi. He was indisposed at the time (See letter
dated
21 December 2005) he knows nothing about the letter. Matee and Seraki
are children of the same mother one Mafori.
In
re-examination:
There
is nobody in the Bahananwa Royal House who becomes a Kgoshi unless he
has been a leader of a regiment.
Matume
married Mafori because she was going to join her aunt at her place
i.e one Mmanchaku.
Shadrack
Makwitinq
Between
2000 and 2006 he was employed at the Bahananwa Tribal office as an
administrative clerk. He stopped working in 2006.
(The
witness was then referred to Bundle "A" page 68)
From
time to time the Bakgoma would hold meetings and he kept the minutes.
The meetings were called by the secretary of the cabinet.
He was not
involved in writing the letters. The letters were distributed by the
messenger.
The
signature appearing on the letter shown to him on page 68 under
"Tribal Council Nol" is his. He is not a member of
the
tribal council. He signed the letter because some of the cabinet
members were not present. Phineas Moremi and Gilbert Maleboho

requested him to sign.
Ben
Seraki died in December 2005. (The letter is dated 21
st
December 2005). He does not know of a meeting of the Tribal Council
that took place in December 2005. There was no such a meeting
in
December 2005.
The
signature under No 2 is that of April Masoka who is a security guard
at the Tribal Office. The third signature is that of Steve
Leboho.
(The witness was then referred to pages 69 - 70 - Letter dated 21
December 2005). He has never seen this letter before.
Under
cross- examination
[7]
He never signed any other letters in December 2005. The signature
appearing on page 68 is his.
(At
this stage the Respondents produce a letter dated 5 December 2005.
The Applicants object to the production of the letter since
it was
not discovered. When the Respondents were given the original file the
said letter was not in the file).The court received
the letter
provisionally.
The
witness admits having signed the letter. However he cannot recall
signing any other letter. He conceded that most of the Bakgoma
cannot
read and write but they invite them by means of letters and somebody
would read the letters to them.
A
"kgoshi" does not call meetings. The Tribal Council is
separate from Bakgoma. The Tribal Council is composed by people
who
are not Bakgoma and those who are.
Although
Gilbert Leboho and Phineas Moremi did not force him to sign the
letter he respects them and he took their instructions.
He left the
Tribal Council in February 2006, after there were allegations that he
had stolen money from the Tribal office. A criminal
case which was
opened against him was later withdrawn. He has a letter in his
possession that the charges were dropped.
According
to him Ngako Isaac Leboho is the "Kgoshi". He does not
think that Tlabo Joseph Leboho is a "Kgoshi".
During
the reign of Ben Seraki there were problems about Ngako. The letter
dated 21
st
December 2005 was meant to block Ngako from becoming Kgoshi. At that
time he was on the side of Tlabo Joseph Leboho. He did not
withdraw
his support for Tlabo because of allegations of theft against him. He
has no motive for shifting support. The two letters
on pages 69 and
70 were not brought to his attention.
Ngako
Richard Leboho
[8]
He is one of the Bakgomana of the Bahananwa. He is the son of the
late Kgoshi Mabea of the Bahananwa. Seiphi is his brother.
He was
present when Seiphi was still alive. Tshwenyegi Phillip is the son of
Seiphi. Mosima was Seiphi's principal wife. Mosima
had no living son
when Seiphi died. After Seiphi's death Mosima acted as a regent of
the Bahananwa Community. Mosima was still
alive when they went to
look for a daughter in law (ngwetsi) He and Tshwenyegi Phillip were
present when the matter was discussed.
They decided to marry a
surrogate mother to the "Kgoshi". They married Mmangako
from the Mokgobu family because when
they approached the Rangata
family they were told that there is no nubile.
They
went to the Mokgobu family because Mmangako is the granddaughter of
Mamphoku. Mamphoku was from the Rangata family. Mmangako
is
Rachacha's grand-daughter. Mamphoku went to marry Mmangako.
Manchaku
Matume's mother died in 1977. In 1978 Matume held a cleansing
ceremony. He was not present at the cleansing ceremony. Matume
said
that Manchaku's cattle would be divided amongst his children and that
Mmangako and Ngako would get their share from the tribal
cattle.
[9]
He still remembers December 2005 when Ben Seraki died. Although he is
a mokgomana he did not know of a meeting which was called
after
Seraki's death. After a Kgoshi has died they perform a cleansing
ceremony and thereafter they can decide on a future "Kgoshi".

After they have ploughed and only after the harvest do they use the
harvest for the cleansing ceremony.
After
the death of Ben Seraki he was one of those who participated in
deciding that Ngako should be identified as a "Kgoshi".
He
was not part of those who decided that Tlabo Joseph should be
"Kgoshi". The father of Matume is Mabea, however the

biological father of Matume is Rakuta.
Under
cross
-
examination
The
"Kgoshi" of the Bahananwa is born and not appointed. The
elders are the ones who go and look for a masechaba. After
Matume
died his son Collin became an acting Kgoshi. Collin was acting on
behalf of Ngako.
Although
he cannot read and write he however knows that Collin was acting on
behalf of Ngako. Ben Seraki was acting as a "Kgoshi",
but
his behaviour was not befitting that of "Kgoshi".
Mmangako
came to bear a "Kgoshi" because she is a grand-daughter of
Mosima and Seiphi.
After
Seiphi died Mosima acted for a while as a regent. She took over form
her husband.
He
knows nothing about the involvement of Contralesa. Mmangako is from
Rangata because she is a grandchild of Rangata. In their
tradition
masechaba is a ngwetsi. The mourning period did not take a year.
There can never be more than one "Kgoshi"
from the same
mother. Mafori is Matume's wife.
Nelly
Leboho
[10]
She was born in 1958. She is the wife of Matee Collin Leboho. She
cannot read and write.
Matee
was an acting "Kgoshi" on behalf of Ngako.
Matee
was bom on the 25 July 1952, Matee was an acting Kgoshi. During her
marriage to Matee she lived with Mafori. Masechaba is
the wife of the
"Kgoshi" whose magadi is paid by the tribal community she
is the one who must bear the "Kgoshi".
She never heard
Mafori claiming that she is a masechaba. She never met Manchaku in
her life.
She
knows that Matee was an acting "Kgoshi" because he used to
tell her that he was not a "Kgoshi", but he was
only
acting. He even told her children that he was acting on behalf of
"Ngako". Matume junior was present when this was
discussed.
Ben Seraki and Tlabo Joseph were also present when this was
discussed.
After
the death of her husband she was told that Ben Seraki was to become a
"Kgoshi". There is nothing she could do because
is not a
masechaba.
After
a "Kgoshi" has died, the tribe goes for mourning for a
period of a year. After the mourning period for Matee, Ben
Seraki,
Tlabo Joseph and Rampodu came to her house and damaged the property
of Matee. She does not know why they damaged Matee's
property.
Cross-
examination by Counsel for the Respondents
.
Ngako's
mother is from Mokgobu and she does not know what Ngako's mother's
status is.She was still too young when the masechaba's
came from
Rangata. She did not understand anything about masechaba then.She
does not know Mosima. Mafori is her mother- in-law
and she came from
Rangata. She is the mother of Seraki and Tlabo Joseph.
Matee
is Matume's son. She used to discuss issues with Mafori, but Mafori
never told her that she had a sister called Mosima. She
knows who the
parents of Mafori are. Richard is the brother to Mafori. Mafori never
told her how she came into the Leboho family.
She never told her that
she came into the Leboho family to revive Mosima's house. If her
house were to be revived, the Leboho family
would go to the Mmanye
family (where she comes from).It will depend on whether there is a
sister. They would look for a younger
sister within the Mmanye
family. Masechaba is chosen by the tribal community.She is no longer
in good terms with Tlabo, since he
came and ransacked her house. She
is not angry with him.
By
court
If
there is no girl available within the Mmanye family the Leboho family
would approach the uncles or get a grand child.
Matume
Wilson Leboho ("Junior”)
[11]
He was born in 1979 and he is the first born child of Matee Leboho.
He is a member of the Royal Family and also a mokgoma.
Matume Wilson
Leboho is his grandfather. He does not know whether his grandfather
was a "Kgoshi" or acting "Kgoshi".
When
referred to letters at pages D-67 and D-80 dated 27 January 1988 and
15
th
September 1960 respectively, the witness responded by saying that his
father was an acting "Kgoshi". His father was born
in 1952.
His father never claimed that he was a "Kgoshi". He was
present when his father told them that he was acting
on behalf of
Ngako and that there must not be strife with Ngako. His sister
Connie, Ben Seraki and Tlabo Joseph were also present.
Ngako was
already born at the time.
After
his father's death he became a Mokgoma. They observed a mourning
period for a year after his father's death. There were no
discussions
on the successor to the throne. He does not know how Ben Seraki
became a "Kgoshi". He does not know of a
meeting of the
Bakgoma where it was agreed that Ben Seraki would become a "Kgoshi".
He remembers vividly when his mother's
house was ransacked. The
people involved were Ben Seraki, Tlabo Joseph, Mmeshai and Mmamokati.
They removed his father's property
from the house.
[12]
He was present when Tshwenyegi Phillip Leboho made an announcement
that Ngako is "Kgoshi". It was in 2005. His father
was
still alive. His father told them that at the initiation school, he
could not take a position because Ngako as the heir had
o take that
position. He does not know why there was no initiation school between
1967 and 1984
In
December 2005 he never attended a meeting where the future "kgoshi"
was discussed, nor was he invited to such a meeting.
His
father Matee told him twice that he must regard Ngako as his father's
elder brother.
Under
cross examination
[13]
He is the great grand son of "Kgoshi" Mabea. At the
initiation school he was a member of the Mabitsi regiment.
Although
he was the most senior at the initiation school because of his status
as a prince, Kharametsi was however the leader of
the mphato
(regiment).
His
father Matee was issued with a certificate to confirm that he is an
acting "Kgoshi". However no mention is made in
the
certificate or letter dated 27 January 1982 that his father was
acting on behalf of Ngako. After his father's death there were

divisions and strives within the royal family, otherwise the royal
council would have met and identified Ngako as "Kgoshi".
If
at all Mafori were a surrogate masechaba, her first born son (Matee)
would have been installed as Kgoshi and not as an acting
"Kgoshi".
It is not possible that Tlabo Joseph who is the third born son can
become a "Kgoshi". (See letter
of 24
th
November 2000- Genealogy) (Traditional Authority - page A18) and
(page 20- A36).
They
opened a criminal case at the Police Station after his mother's house
was ransacked. (Counsel for the Respondents admits that
Tlabo Joseph
visited Nelly's house and some Royal Property was taken.) The said
property belonged to the witness's father. When
Mosima died in 1961,
Mafori was already at the Royal Place/house. Normally the Royal
Council would identify a "Kgoshi"
and call a tribe's
meeting and announce the "Kgoshi".
[14]
The people whose names appear on Bundle A page A15 - do not belong to
the Royal Council. Since his father died, he never attended
any
meeting of the Bakgoma. He never had a problem with Tlabo.
Re-examination
The
Bakgoma bear the surname of Leboho or Maleboho. Moremi, Moruthu and
Moremi on page A15 do not qualify to be Bakgoma. Kharametsi
is his
uncle's younger brother and he is junior to him. The name of
Tshwenyegi does not appear on the list on page A15. Tshwenyegi
was
one of the most senior Bakgoma. His father died in 1999 and Tlabo
Joseph and others came to their home after the cleansing
ceremony of
his father - which was held after the expiry of a year. The Bahananwa
royal family does not approach any Rangata family
for a masechaba -
they would approach a particular Rangata family.
Mmamovahabo
Thanvane
She
is a member of Bahananwa Traditional Community but not from the royal
family. She is the grandmother of Johannes Tau Molele(
the person who
prepared the genealogy) When Matume Wilson Leboho married Mafori, she
was an emissary (mediator) (maditsela)during
the negotiations of the
marriage. Mafori is her sister in law's daughter. She then continued
to say that she did not see any magadi
(dowry) and that she was not
present when magadi was negotiated. She also told the court that
Mafori was troubled by a madman and
as a result she had to go and
stay at the mountain. (This meaning she went to the hill where the
royal family lives). (The interpretation
would be that she was taken
to the royal family for protection from the madman) (The court noted
that the witness is very old and
as a result the sequence of events
and explanations do not come out as one would expect).
[15]
Mafori is not Masechaba, Mmangako is a masechaba. Kabela Ngako's
grandmother and herself negotiated magadi for Mmangako. When
Mafori
was married both Seiphi and Mosima were still alive. Mafori and
Mosima married because they loved each other. Mafori was
not
masechaba.
In
fact Seiphi was not happy when Matume married Mafori because Seiphi
said that Mosima and Mafori came from the same family. When
magadi
for Mafori were negotiated, Mafori already had a child by the name of
Ramamphu who was an acting Kgoshi on behalf of Ngako.
Ramamphu's wife
is the daughter of Mmanye.
Under
cross examination
In
their culture, the bride price is paid to the bride's family for the
purpose of uniting the two families. She was a maditsela
(emissary)
for Mafori while Kabela was an emissary for Matume. Kabela is
Mmangako's grandmother.
Mosima
and Mafori are sisters from Rangata. Although Mosima welcomed Mafori
into the Leboho family, Mafori however did not come
to revive
Mosima's house. It is Mmangako who came to revive Mosima's house.
Mosima was already dead when Mmangako was married.
Mosima did not
participate in the marriage of Mmangako. Mosima was still alive when
the negotiations that Mmangako should revive
her house were
discussed. Although Mmangako is from Mokgobu, she can revive the
house of Mosima. She is surprised why Counsel says
Mmangako cannot
revive Mosima's house. Ramamphu Matee Collin was born out of wedlock,
because when he was born magadi were not
yet paid for Mafori.
Under
re examination
Kabela's
mother is Mamphikela who is from Rangata family. Since Mosima could
not bear children, they arranged that Mmangako would
bear children on
her behalf.
Mohlahlodi
Caiphus Rangata
[16]
He is a member of the Rangata family. The Leboho Royal family
approached the Rangata family for a bride. They told them that
they
did not have a nubile available. They then approached the Mokgobu
family and went to marry Mmangako. He knows Tlabo Joseph
Leboho.
Nobody approached their family for a wife for Tlabo. Nobody came and
asked for a bride for Ben Seraki. Nobody approached
their family for
a bride for Matee Collin.
Mafori
is his uncle's daughter, she was a Rangata as well. Mafori was the
wife of Matume Wilson Leboho. Mafori went to the Leboho
family to
assist Manchaku with the harvesting of mabele (brown corn). At the
time when she was at Manchaku's place, Matume Wilson
entered her
sexually and they ended up marrying each other. Masechaba is a
ngwetsi of the Leboho Royal family. A Kgoshi can be
born from any
women from another family rather than Rangata. Masechaba can come
from the Morudu, Mokgobu, Makwiting or Rangata
families. These are
families from which a "Kgoshi" can be born.
The
principal wife of a "Kgoshi" is the masechaba of the Royal
family. (The witness was then referred to Bundle B - pl5
an extract
from Van Schalkwyk Book or Thesis).
The
first born son or daughter can become a "Kgoshi". A
masechaba may be married from any of the families mentioned above
to
revive the house where there is no child. These families are Rangata,
Kubu and Morudu. He does not know who the emissaries were
when Mafori
was married.
Under
cross examination
He
is neither a mokgoma nor a mokgomana. He does not know of any woman
from the Mokgobu family who was married to the "Kgoshi"

before. He agrees that a masechaba would come from Rangata, Kubu and
Morudu.
Bahananwa
came to the Rangata family and when they were told that there was no
nubile, they approached the Mokgobu family. They
came back to the
Rangata family and reported that they found a bride at Mokgobu
family. Mosima was his aunt and she was married
to the Leboho royal
family.
There
is only one masechaba in the royal family. Mmangako is a Mokgobu, a
grand daughter of the Rangata. For a certain period the
masechaba's
came from Rangata. Tlabo's mother is a Rangata - ie Mafori. Matume
and Matee were acting "Dikgoshi". Mmangako
came into the
royal family to bear a "Kgoshi"
(The
witness was then referred to Bundle A - 127- Certificate of
Recognition dated 6
th
September 2006)
When
approached, the Rangata family did not refuse to give a daughter to
the Leboho royal family. The Rangata family told the Leboho
family
that there was no daughter available. He knows that Mafori had gone
to Leboho to assist with the harvest of mabele. A masechaba
can come
from Rangata, Kubu, Mokgobu, Morudu and Makwiting.
[17]
(The witness was then referred to family tree Bundle A 19 - 36 and
Bundle B 174) All the families he mentioned would produce
a
masechaba. He does not know if Tlabo is married to a Rangata woman.
If this was the case, he would have been invited to the negotiations.
Under
re examination
The
Rangata are also known as Phephame. He knew Mafori personally. At the
time Seiphi and Mosima died there was no nubile who was
available
within the Rangata family as bride to the Leboho family.
Maselelo
Ramokone Leboho
[18]
She is a member of the Royal council as well as a member of the royal
aunts (Dikgadi). She knows Mmangako as ngwetsi for Mosima.
The elders
of the Bahananwa Royal family went to ask for Mmangako's hand.
Mmanchaku was involved in the negotiations. They first
approached the
Rangata family for a bride and they were told that there is none.
They then approached the aunt's family (Rakgadi).
Mosima was still
alive when they approached the Mokgobu family for a bride. They
approached the aunt's (kgadi's) family, one Mmamphikela,
Mabea's
sister. They were looking for a ngwetsi to revive Mosima's house
since Mosima had no offsprings.
She
was present at the cleansing ceremony when Matume, who is Mmanchaku's
son divided her property, amongst his wives and children.
Matume said
that Mmangako would receive her share from the tribal cattle. This
was done in the presence of the community. In essence
Ngako is Mosima
and Seiphi's child.
Under
cross examination
There
is no need for a dispute over the bogoshi of Bahananwa because it is
clear that Ngako is "Kgoshi" and not Tlabo.
Seiphi did not
want Matume to marry from Rangata. Matume's wives are Mafori and
Mmamolatelo. Matume entered the wife of Seiphi
(ie Mmangako) in order
to revive the house of Mosima. Mafori is not a surrogate to Mosima -
she is Matume's wife. Ramamphu Collin
was acting as Kgoshi on behalf
of Ngako. Mosima was still alive when Mmangako came into the Royal
family.
Under-
re- examination
Mosima
and Mafori share a father, but are from different mothers. When
Matume entered Mafori sexually, Seiphi was still alive. Matume
could
not enter Mosima when Seiphi was still alive. Mosima is the elder
sister to Mmanchaku.
Pheaha
Richard Leboho
[19]
He was born in 1961. He is Tshwenyegi's son. Ngako is his father's
elder brother. Ngako is "kgoshi". He and Ben Seraki
did not
attend the royal initiation school at the time because they had to
wait for Ngako to come of age, since he (Ngako) had
to lead a
regiment. Matume and Tshwenyegi informed them about this.
After
Ben Seraki was buried, the mayor of Blueberg Municipality one Refiloe
Kubyane called a meeting and told the gathering that
Tlabo Joseph
would rule as Ben Seraki did. He exited the meeting because what the
mayor was saying was not true.
According
to the Bahananwa custom the mourning period for a "Kgoshi"
is a period of a year. No Kgoshi can be installed
during the mourning
period. On the 13
th
July 2006, Mr Kekana from the Premier's Office visited the Bahananwa
Tribal Council with a view to identify a "Kgoshi".
He the
(witness) told the meeting that Ngako is "Kgoshi". He
further produced Ngako's father's certificate an acting
certificate
of Matee Collin. Mr Kekana said that Ngako's supporters were arguing
with evidence. At the meeting it was mentioned
that Ngako and Tlabo
attended the same initiation school, but Ngako was the leader of the
regiment (mpahto). Mr Kekana then closed
the meeting and said that he
would give the gathering a feed-back in two weeks.
No
explanation was given why Tlabo was identfied a "Kgosi"
(Page A56 -Memorandum) He does not know why false information
about
Matume was given to the Premier.
Under
cross examination
He
does not know why Contralesa report was challenged in court. The
dispute is about the recognition of Tlabo Joseph Leboho as "Kgoshi"

and not about Ben Seraki. The identification of a Kgoshi is not done
by the Premier's office. Bakgoma identify a Kgoshi. The Premier
has
no choice but to endorse what the Royal Council has decided.
(The
witness is referred to A - 68 and A -54). The witness states that he
can neither read nor write. His father Tshwenyegi, participated
in
the decision to identify Mattee Leboho as an acting "kgoshi".
Tlhatludi Leboho is not senior to his father Tshwenyegi
Phillip.
As
reflected on bundle A - 54 the following people's status would be:
(i)
Elias
Mafolo Leboho - Mokgomana
(ii)
Nicholas
Matome Leboho - Mokgomana
(iii)
Patrick
Seleko Leboho - Mokgomana
(iv)
Alpheus
Masilo Leboho – Mokgomana
He
denied that the minutes (register) which reflects that his father
Tshwenyegi Phillip was present at the meeting which identified
Joseph
Leboho as kgoshi is correct as he was not there. He does not know
what happened at the meeting of 21
st
December 2005 since he was not present. The meeting as appears on
page 69 includes Bakgomana. His father, Tswenyegi was not present
at
the meeting of the 21
st
December
2005 - his name was merely inserted. He attended the meeting of the
13 July 2006. (See page 90 only names appear - there
are no
supporting minutes) George Leboho is a mokgoma. Only Bakgoma were
supposed to be present at the meeting. Ngako became the
leader of the
regiment at the initiation school because he is the son of a
masechaba. Mafori was not a masechaba -she was Matume's
wife.
Under
-
re
—examination
(The
witness is referred to Bundle G- 1) - (Same letter as one on page A-
68). (The letter was filed in October 2007. However letter
appearing
in Bundle A -69 does not appear in Bundle G). (The letter was not
originally filed when Bundle G was compiled by the
Premier's office).
According to the Bahananwa custom a person who may be identified as
"Kgoshi" does not participate
in the decision meant for the
identification of a "Kgoshi". The name appearing on A - 70
number 21 is that of Tlabo Joseph
Leboho. He was not supposed to be
present at the meeting.
TAU
JOHANNES MOLELE
[20]
Tau Johannes Molele testified that he is a traditional healer and in
particular a traditional healer for the Bahananwa royal
family. His
father who is still alive was the traditional healer for the
"Kgoshi". When he took over from his father,
he was
informed that he is a traditional healer for "Kgoshi" Ngako
Leboho.
(The
witness was then referred to Bundle B - 174 - Genealogy). He is the
author of the genealogy of the Bahananwa. He got information
from
Tshwenyegi Phillip Leboho, Richard Leboho and his father. The
genealogy appearing on Bundle A19 -36 and the one appearing
on B -174
were compared) The distinction between the two is that under A19 -36
Mmangako is reflected as a ngwetsi or wife of Matume
whereas under B
- 174 she is mentioned as ngwetsi to Mosima. However in the affidavit
of Tlabo Joseph (C - 160) he states that
Mmangako was not married to
Matume, as his wife because she came from the Mokgobu family.
Mmangako was Mosima's ngwetsi.
Under
cross examination
[21]
The genealogy appearing on B -174 is the correct one. He knows that
Mmangako lost a child before Ngako was born. At the time
he prepared
the genealogy there were no strives and factions within the royal
family. The dispute over Bogoshi was manifesting
itself already by
the year 2000. He also consulted with senior bakgoma including
Tlhatludi Leboho when he compiled the genealogy.
His grandfather was
a traditional healer for Seiphi. He is responsible for staging
initiation schools. It is the royal family who
decides who the leader
of the regiment is.
Under
re examination
(A
- 19 - 36 Genealogy) Mosima had no children. Matee, Freddy, Ben
Seraki e.c.t are not reflected as Mosima's children. Mafori is
not
reflected as masechaba or Mosima's ngwetsi. Matee, Ben and Tlabo are
not reflected as Mosima's children.
(It
can be mentioned that on the 29 April 2010 when the court resumed,
the Respondents raised an objection when the Applicants produced

Bundle "J" - expert documents). The procedural point raised
by the respondents was dismissed).
When
the Applicants called the expert, the Respondents objected on the
basis that the witness was sitting in court during the proceedings).

The objection was not sustained. [22] Christo Jansen Van Vuuren -
(The curriculum vitae of the witness is agreed upon by the parties).

He is a Professor at Unisa in the Department of Anthropology and
Archaeology. He holds a D. Phil degree in Anthropology. His
publications
and papers appear on pages J 34 – 38.
The
witness was then referred to Bundle E- an extract from the book of
Van Schalkwyk. The study was done under supervision. He was
a co-
supervisor of Van Schalkwyk. At that time he was already the holder
of a doctorate which he obtained in 1992. He then explained
the
chronology of Kings - in Africa there are (3) systems of
regimentation. In East Africa there is a system called cyclical
linear
and generation system. In South Africa among Sotho speaking
people they use a linear system. The Ndebele of South Africa use the

cyclical system. Linear system demonstrates the leaders of the
specific regiments and kings. It also indicates the year and the
date
of succession. Matume Wilson Leboho was not a leader of a regiment
because there was somebody more senior available at the
time. He
further told the court that it is correct that not all people who
became leaders of the regiments became "Dikgoshi".
He
testified that the letters mentioned hereinbelow in Bundle "B"
demonstrate that Bahananwa Traditional Community was
in mourning and
the community does not discuss the identification of a Kgoshi during
the mourning period.
(i)
Letter
dated 2 May 1939 found at page 199.
(ii)
Letter
at page 198
(iii)
Letter
dated 7 December 1940 at page 193
(iv)
Letter
dated 8 January 1941
(v)
Letter
dated 29 November 1941 at page 186
(vi)
Letter
dated 24 August 1945 at page 185
[23]
The period for mourning is one year. The letters appearing on pages
174 and 177 are a confirmation that Seiphi was installed
a Kgoshi.
The letter in Bundle "D" dated 23 November 1953 states that
Seiphi died in November 1953. The letters dated
22 January 1954 and
15 February 1954 on pages 163 and 164 of Bundle "D"
confirmed that Mosima was identified to reign
as a regent until her
death. The letters appear on pages 155, 156 and 159 of Bundle "D"
are an indication of how the
government of the day imposed on the
tribe as to who must be installed as Kgoshi and how the Kgoshi had to
discharge his duties.
The letter dated 2 June 1954 denotes that the
late "Kgoshi" Maleboho broke the custom of his tribe by
marrying a wife
from Rangata instead of Morudu or Kubu family.
Letters at pages 82 and 85 of Bundle "D" state that the
tribe identified
Matume Wilson Leboho as Acting Kgoshi until such
time that a successor would be raised. Letter at page 33 of Bundle
"D"
denotes that Mosima passed on around June 1960. The
witness testified that Pheaha Richard Leboho addresses Ngako Isaac
leboho as
uncle (rangwane) in terms of Bahananwa traditional custom
and status. He also told the court that it is unusual that the fourth

son, such as Tlabo Joseph Leboho should be installed as Kgoshi.
Under
cross examination
Kgoshi
Seiphi was an heir of Mabea and not Rachacha. According to the letter
dated 2 May 1939 on page 199 of Bundle "D"
the mourning
period was less than a year. In the past once a "Kgoshi"
was identified he would be introduced by the Bakgoma
to the
Commissioners. Presently he would be recognised by the Premier. He
has not come across authority confirming that masechaba
for the
Bahananwa royal family would come from the Mokgobu family. The thesis
of Van Schalkwyk does not specifically deal with
the subject relating
to that fact that the future Kgoshi would be born by a masechaba from
a particular family including the Mokgobu
family. However he conceded
that a masechaba plays an important role within the Bahananwa royal
family.
He
has not seen a resolution endorsed by the Bahananwa Royal Family to
the extent that Ngako should be identififed as a Kgoshi.
He denied
that children of Mafori were Mosima's children. Mafori did not come
into the royal family to revive Mosima's house.
Under
re examination
Mabea
died before his father, Rachacha (kalushi) died. Rachacha died in
1939.
Evaluation
and Analysis
[24]
THE
EMPOWERING LEGISLATIVE FRAMEWORK AND CASE LAW
Sections
211
and
212
in Chapter 12 of the Constitution of the Republic of
South Africa Act 108 of 1996 regulate the official recognition of
traditional
leadership in traditional communities.
(1)
Section
211 -The institution status and role of traditional leadership
according to customary law are recognised subject to the

Constitution.
(2)
A
traditional authority that observes a system of customary law may
function subject to any applicable legislation and customs,
which
includes amendments to, or repeal of that legislation or those
customs.
(3)The
courts must apply customary law when that law is applicable, subject
to the Constitution and any legislation that specifically
deals with
customary law.
Section
212 - (1) National Legislation may provide for a role for traditional
leadership as an institution at local level on matters
affecting
local communities. (2) to deal with matters relating to traditional
leadership, the role of traditional leaders, customary
law and the
customs of communities observing a system of customary law -
(a)
National
or provincial legislation may provide for the establishment
of houses of traditional leaders;
(b)
National
legislation may establish a council of traditional leaders.
Traditional
leadership as an institution in the South African legal system is
underpinned by a number of fundamental rights. In
Minister
of Public Works and Others vs Kyalami Ridge Environmental Association
and Another
2001 (3) SA 1151
(CC)
at
1172 para 54,
Chaskalson
P was of the view that "the doctrine of legality applies to
the
exercise of all public power............if it were an unlawful
decision it
would
be invalid and liable to be set aside whether it infringed their
rights or not". The Premiers' powers therefore would
reside
under this dictum.
The
authority of this power was elucidated by Langa □ in
AAA
Investments (Pty) Ltd v Micro Finance Regulatory Council
[2006] ZACC 9
;
2007 (1) SA
343
at
pages 372 -373 para 68 - "this is a matter of the application of
the rule of law and the principle of legality which flows
from the
value of the rule of law enshrined in Section 1 of the Constitution.
This court has held that the exercise of all public
power must comply
with the Constitution, which is the supreme law, and the doctrine of
legality, which is part of the law. The
doctrine of legality, which
requires that power should have a source in law, is applicable
whenever public power is exercised".
Section
12 of the Limpopo Traditional Leadership and Institutions Act 6 of
2005 read with
Section 11
of the
Traditional Leadership and
Governance Framework Act 41 of 2003
regulate the traditional
leadership in the Limpopo Province and on a national level.
[25]
The official recognition of a person as a "Kgoshi" of the
Bahananwa Traditional Community or a senior traditional
leader as it
is coached in the Legislation will be governed by these sections.
Section 11
of Act 41 reads as follows:
(1)
Whenever the position of senior traditional leader......is to be
filled
(a)
the
royal family concerned must within a reasonable time after the need
arises for any of those positions to be filled, and with
due regard
to applicable customary law -
(1)
identify
a person who qualifies in terms of customary law to assume the
position in question, after taking into account whether
any of the
grounds referred to in section 12 (1) (a) (b) and (d) apply to that
person; and
(ii)
through the relevant customary structure, inform the Premier of the
province concerned of the particulars of the person so
identified to
fill the position and of the reasons for the identification of that
person and
(b)
the
Premier concerned must subject to subsection (3) recognise the person
so identified by the royat family in accordance with provincial

legislation as senior traditional leader......
(2)
(a)
The provincial legislation referred to in subsection (1) (b) must at
least provide for -
(i)
a
notice in the Provincial Gazette recognising the person identified as
senior traditional leader......in terms of subsection
(i);
(ii)
a
certificate of recognition to be issued to the identified person; and
(iii)
the
relevant provincial house of traditional leaders to be informed of
the recognition of a senior traditional leader....
(c)
Provincial Legislation may also provide for -
(i)
...........; and
(ii)
Consultation
by the Premier with the traditional council concerned where the
position of a senior traditional leader.....is to be
filled.
(3)
Where
there is evidence or an allegation that the identification of a
person referred to in subsection (1) was not done in accordance
with
customary law, customs or processes, the Premier -
(a)
may
refer the matter to the relevant provincial house of traditional
leaders for its recommendation; or
(b)
may
refuse to issue a certificate of recognition; and
(c)
must
refer the matter back to the royal family for reconsideration and
resolution where the certificate has been refused.
(4)
where
the matter which has been referred back to the royal family for
reconsideration and resolution in terms of subsection (3)
had been
reconsidered and resolved the Premier must recognise the person
identified by the royal family if the Premier is satisfied
that the
reconsideration and resolution by the royal family has been done in
accordance with customary law,
[26]
The national legislation framework mirrors the provincial legislation
framework and they are more or else a copycat of each
other.
Therefore the discussions of one of them should be regarded as the
discussion of the other. The legislation for the Limpopo
Province,
contemplated in Section 12 of Act 6 of 2005, is contained in Section
11 of Act 41 of 2003. However, Section 12 of Act
6 of 2005 has an
additional rider under subsections (1) (b) (iii) and (2) (a) where
the Premier is also obliged to refer the matter
to the relevant local
house of traditional leaders. There is therefore no need to
regurgitate Section 12.
It
therefore holds that before the Premier can lawfully and properly
recognise someone as a senior traditional leader or "Kgoshi"

of the Bahananwa Traditional community, he should be satisfied that
certain requirements are met. It is clear from the reading
of the
relevant legislation that if e.g the provisions of Section 12 (a) are
complied with, the Premier must subject to subsection
12 (2) - act in
terms of Section 12 (b).
Where
there is evidence or even a mere allegation that the identification
of a person as a "Kgoshi" was not done in accordance
with
customary law, customs or processes, of the Bahananwa Traditional
Community the Premier is open to two options; (1) to either
refer the
matter to the Provincial House of Traditional Leaders and the
relevant Local House of Traditional Leaders for their recommendations

or
(ii)
to refer the matter back to the Royal Family. The Premier has no
discretionary power to resolve the dispute on his own, his
power
and/or function is expressly restricted by legislation to refer the
matter to one of the two forums referred to above to
obtain a
recommendation
or otherwise refer the matter to the Royal Family for a resolution.
It
is now common cause that the matter was not referred to the
Provincial House of Traditional Leaders and the relevant Local House

of Traditional Leaders for their recommendation. It is indeed true
that at one stage the matter was referred to Contralesa. While
I
respect the role that Contralesa plays in the matter of traditional
leaders, one must state that in this instance Contralesa
was playing
a role of an advisor. Its decision is not legally binding.
As
already indicated above the Premier is under an obligation to ensure
that all the steps necessary have been followed before he/she

recognises the person so identified. The use of the word "must"
in the legislation is intended to convey a meaning of
compulsion,
duty and obligation upon the Premier. The context of the doctrine of
legality and the clear restrictions for Legislative
power binds the
Premier to follow the prescribed process in the recognition of the
senior traditional leader.
In
Mashego v Premier, Mpumalanga Province & Others
2006 JOL 17887
T,
it
was held that; in the context of our new Constitutional regime, the
appointment or disposition of a traditional leader is an

administrative act governed by administrative law. Whereas in
Shilubana
and others v Nwamitwa and others
[2008] ZACC 9
;
2008 (9) BCLR 914
(CC)
the
court found that; Section 211 (2) of the Constitution, required that
courts should respect the right of traditional communities
to develop
their own law.
In
my view, this would also include other branches of government such as
the executive. All of us are therefore enjoined to respect
the right
of traditional communities.
The
historical background already referred to in this judgment should
serve as a reminder to those presiding over the identification
and
recognition of traditional leaders. Section 11 of Act 41 of 2003 and
Section 12 of Act 6 of 2005 were brought in to prevent
the iniquities
that occurred during the apartheid era. Neither the Premier nor, for
that matter, the Royal Family of the Bahananwa
Traditional Community
are free to elect or choose, identify, or recognise the candidate
whom they support or prefer. A "Kgoshi"
of the Bahananwa
Traditional Community is born and not elected, chosen or appointed.
The requirements, procedures and processes
for the identification by
the Royal Family and the recognition by the Premier of a "Kgoshi"
of the Bahananwa Traditional
Community should be regulated by the
provisions of Act 41 of 2003 and Act 6 of 2005. Anything done outside
the provisions of Act
41 of 2003 and Act 6 of2005 is
ultra
vires
and
beyond the scope of the empowering legislation. The factual basis as
discussed hereinbelow will indicate as to who qualifies
in terms of
the customary law of the Bahananwa Traditional Community to assume
the position of "Kgoshi" of that community.
A
sypnosis of the Bahananwa roval succession to the throne
-
from
Maleboho to Seiphi.
[27]
Legend has it that the Bahananwa people moved from Botswana to what
is now known as Blouberg or Maleboho. Kgalushi Seketa Rachacha
Leboho
ascended the throne which he inherited from his forefathers.
After
many tribulations of resistant wars against the colonial forces he
was captured and imprisoned. He was subsequently released
in 1900 and
continued to rule over his people until 1939 when he died. He was
succeeded by Seiphi. According to evidence tendered
in court,
Kgalushi's son, ie Mabea died before him. (See Bundle B pages 98
-100). When Kgalushi died in 1939 his wife Mmamphoku
ruled for a
while until 1940 when she died. There is no dispute that Seiphi died
in 1953 and that his wife Mosima ruled as a regent
thereafter until
she was removed by the colonial government in 1957. There is also
evidence before court that Rachacha's principal
wife (masechaba) was
from Rangata which broke the tradition of the Bahananwa of taking the
masechaba from kubu and Morudu. In fact
it was revealed in evidence
that the Bahananwa Royal Family marry their masechaba from Morudu,
Rangata and Kubu families. J A Van
Schalkwyk opines that from the
time of the reign of Leboho to immediately after the death of Seiphi
the masechaba of the Bahananwa
would take over the reigns from their
husbands. Mmamphoku took over from Kalushi. Mmanchaku also ruled for
a while. Mosima took
the reigns from her husband Seiphi.
Surprisingly, this practice was never followed since the period after
Mosima.
[28]
Seiphi's inauguration was delayed by many years until 1946 when he
was installed. The same trend was followed in the case of
Mosima. The
reason why the Native Commissioner at Bochum delayed Seiphi's
inauguration as Kgoshi was simply because he was not
co- operating
with the government of the day. See Van Schalkwyk page 122 and files
F541074/2: 24 and F541074/248. The government
would also raise
drunkenness on the part of Seiphi as an excuse.
Mosima
was a masechaba from the Rangata family. She was childless. After the
death of Seiphi in 1953, the Bahananwa Royal family
hastened to
install Mosima as a regent. However this was delayed by the
government - File F54/1074/2:49
[29]
The State ethnologist N J Van Warmelo was against the installation of
Mosima as a regent raising questions of traditional practise
and also
the fact that she might not have been the rightful person to take
over the reigns - See files F54/074/2: 53 and F54/ 1074/2:80.
Since
she had no child the family had wished that her house should be
revived.
It
would later transpire that all these tactics were used by government
because the Bahananwa people were regarded as hard-headed
and
uncooperative with government, due to the fact that they refused to
pay tax and rejected the system of registration of birth
and death.
As a consequence, inauguration of Mosima had to be stalled. The
payment of pensions and maintenance of water supply
had to be
terminated. -See file F54/1074/2: 56, 57). And also the letter of the
Chief Native Commissioner: Pietersburg (as it then
was) file
F54/1074/2:58.
In
the past the following was the rule: "The Governor - General may
recognise or appoint any person as a chief or headman in
charge of a
tribe or of a location, and is hereby authorised to make regulations
prescribing the duties, powers and privileges
of such chiefs and
headmen. The Governor-General may depose any chief or headman so
recognised or appointed" - Subparagraph
7, Section 2 of the
Native Administration Act of 1927.
In
august 1954 the Secretary of Native Affairs (W.W.M Eiselen) wrote a
letter to the Chief Native Commissioner in which he categorically

stated that Mosima could not be appointed as a regent until there is
clear indication that she and her people would co-operate
with the
government - File F54/1074/2:60. The Commissioner threatened to
withdraw social grants, maintenance of roads, dams and
windmills, and
school development. Mosima was only installed on the 22
nd
May 1956 on probation. File 54/1074/2: 108. Mosima died around June
1960.
I
lay this foundation for discussion of a similar matter hereinbelow
[30]
THE
PERIOD BETWEEN MATUME WILSON MALEBOHO AND BEN SERAKI LEBOHO.
Matume
Wilson Leboho was born in 1926. He is the son of Mabea and
Mmantshaku. Mmantshaku and Mmamphoku are sisters from the Rangata

family. Mmamphaku, as it has been mentioned above is Seiphi's mother.
As a young girl Mmanchaku was a care giver (babysitter) for
Seiphi.
Mabea then decided to marry her. Seiphi and Wilson are half brothers.
Matume Wilson was installed as an Acting "Kgoshi"
in
January 1958 - it was also the intention of the family that Matume
would become a seed-raiser for Seiphi in order to revive
the house of
Mosima - See in this regard Van Schalkwyk page 128.
There
is evidence by Nelly Leboho, Ngako Richard Leboho and Maselelo
Ramokone that at the cleansing ceremony of Mmanchaku, (ie Matume's

mother) Matume informed the Bahananwa gathering that the property of
his mother would be divided amongst his wives and children
and that
Mmangako and her son would share from the royal property. There is
also evidence that Matume Wilson made it clear that
he was not a
Kgoshi, but was acting on behalf of "Ngako".
The
letter of appointment for Matume Wilson Leboho dated 27 January 1958
is in an acting capacity. The appointment letter of Matee
Collins
Leboho dated the 8
th
July 1982 is also in an acting capacity. Pheeha Ben Seraki Leboho was
also appointed in an acting capacity - see letter dated 1
st
November 2001. (Bundle F). This is confirmed by the evidence of the
Applicant's witnesses to wit, Matume Leboho. Tshwenyegi Phillip

Leboho, Nelly Leboho e.ct.
Matume
Leboho was nominated as a seed-raiser to father a child with Mmangako
Mokgobu as "ngwetsi" for Mosima Rangata to
revive her
(Mosima) house. The offspring between Matume and Mosima would then be
regarded as Seiphi and Mosima's child - that is
Ngako, who would then
become the future "Kgoshi".
Matee
Collins Leboho held his acting position on behalf of Ngako. He
related this to his wife and children. The evidence of Matume
Wilson
(Jnr) confirms this. Tlabo Joseph, the 2
nd
Respondent was also present when this was said. The Respondents
wouldn't refute the reason why the three Digoshi ruled in acting

positions. There is no evidence to the contrary. The absence of any
written document that the three of them acted on behalf of
Ngako is
no proof that it is not true. Circumstances are such that most of the
Bakgoma cannot read and write and a lot was handed
down by word of
mouth. Even, so, Ben Seraki himself did not obtain a permanent
appointment even after the recommendation by Contralesa.
It can be
mentioned that while one respects Contralesa as an organisation which
plays an important in the affairs of traditional
leaders, in this
instance it was merely giving an advise which advise has no binding
effect at all.
When
Matume Wilson Leboho was approached by some young men among them, his
grandson, the late Ben Seraki and Pheeha Richard Leboho
in 1975 to
convene a royal initiation school, he refused because the said Ngako
Isaac Leboho was still young and not old enough
because the others
had to wait for him as the future "Kgoshi" to establish a
regiment. The evidence concerning this incident
also stands
uncontradicted.
[31]
The
significance of leading a regiment (mphatcO in the Bahananwa custom.
According
to the Bahananwa custom boys are taken through initiation schools to
introduce them to the understanding of the coming
of manhood. It is
not the actual transition, biologically or socially, it is a form of
preparation which emphasises the male qualities
of the growing boys -
(Swantz 1970: (70).
It
is trite that when a "Kgoshi" establishes an initiation
school one of his sons should attend as an initiate. Although
some
sons of the Digoshi may attend the initiation school, one of his sons
or in the absence thereof a son of bakgomana may lead
the regiment
(mphato). It is the custom and tradition of the Bahananwa Traditional
Community that has been practised since time
immemorial that no
person who has not been the leader of the regiment was ever a
legitimate "Kgoshi" of the Bahananwa
Traditional Community.
This is confirmed by Table 5 of Van Schalkwyk (Mansregimente Van die
Hananwa).
The
Maohu/Makoba regiment was led by Kalushi who later became a Kgoshi.
The Marutho regiment led by Mabea was a Kgoshi. The Ditlhaga
regiment
was led by Seiphi who was a Kgoshi. Ngako who is the subject of
adjudication in this judgment became the leader of the
Makoba
regiment. It is also significant to note that Matume Wilson and his
sons, Ben Seraki and Tlabo Joseph were not leaders of
any regiment In
fact Tlabo Joseph and Ngako Isaac Leboho attended the same royal
initiation school of 1984 and Ngako is the one
who established the
Makoba Regiment of which he was the leader. - (See Bundle "B"
Page 21 footnote 4).
[32]
The evidence before court confirms that the said initiation school
was only convened once the said Ngako Isaac Leboho was old
enough to
attend and it was therefore specially convened for him. This is proof
that Ngako was destined to become a "Kgoshi".
Nqako's
own traditional healer from the same lineage.
There
is uncontested and unchallenged evidence by Johannes Tau Molele
before the court that at least from the time of "Kgoshi"

Rachacha Leboho every "Kgoshi" of the Bahananwa Traditional
Community had a traditional healer for himself. The grandfather
of
Johannes Tau Molele occupied this position, which was taken over by
his father then himself. He is presently the traditional
healer of
Ngako Leboho and not for Tlabo Joseph Leboho. There is no evidence by
the Respondents that there is a traditional healer
for Tlabo Joseph
Leboho from the same lineage.
[33]
The
role of a masechaba/timamollo/seantlo in order to legitimise an heir
to the throne for the Bahananwa Traditional Community.
In
their book Die Privaatreg van die Suid Afrikaanse Bantoetaal
-sprekenders - 3
rd
uitgawe, Olivier A J J et all refer to Monning en Harries at page 447
and write on; the Bapedi,that: "if a man has no sons
his
possessions cannot revert to other relatives since efforts will have
to be made to produce a son for him posthumously.......if
there is
no
heir, and the widow is no longer capable of having children, or if
there is no widow , the control over property is automatically

assumed by the closest male relative, but it is his duty to use this
property to obtain an heir for the deceased".
In
the instant case, after Matume ascended the throne in an acting
position, he facilitated the procreation of a son with Mmangako

Mmangako through the Bakgoma and Royal family. He was identified as a
seed raiser and out of that Ngako was born. This is in accordance

with the Bapedi customs of succession. The report of the Commission
on Traditional Leadership Disputes and Claims (the Nhlapo Commission)

in particular, "Determination on Bapedi Paramouncy"
discusses "Succession to the Kingship of Bapedi" and refers

to H 0 Monning; "The Pedi"(1967).
At
pages 20- 21 the following is of cardinal importance:
"5.11
(a) customary succession is based on a system of male primogeniture.
A female cannot succeed. The status of a wife within
a polygamous
marriage determines succession to kingship, (b) Amongst the wives of
a "Kgoshi", there is timamollo or candle
wife. The Magadi
(lobola) of the candle wife (great wife) is derived form
contributions made by the community;
............(d)
Timamollo is married in order to bear an heir to the throne;
5.12
if customary laws of succession discussed above fail to provide an
heir, the following customary practices are restored to-
(a)
If
a timamollo is unable to bear an heir, thlatswadirope acts as a
surrogate mother;
(b)
Where
a candle wife dies without issue, one of her sisters or close
relatives is provided as Seantlo, to bear children on her behalf(
or
an heir) (my own emphasis). The same ritual of marrying a timamollo
is followed in marrying the Seantlo.
(c)
in
the event of the death of a "Kgoshi" without issue, the
royal family appoints someone to raise seed on behalf of the

deceased".
If
has been confirmed that after the death of Seiphi, Mosima acted as a
regent during interregrum. Thereafter Matume took over the
reigns as
an acting "Kgoshi". Mmangako was then married as a
thlatswadirope or Seantlo to raise a seed for Mosima. Matume
was a
seed raiser and Ngako was born.
It
can be mentioned that Matume Wilson Leboho and all his descendants,
including the said Tlabo Joseph Leboho are not blood relations
of
"Kgoshi" Seiphi Leboho , the late "Kgoshi" Mabea
Leboho or the late "Kgoshi" Rachacha Leboho .
According to
the undisputed evidence, his mother was Mantshaku Rangata but his
biological father was one Rakuta Leboho and not
the late "Kgoshi"
Mabea Leboho. However, although he does not belong to the Bahananwa
Traditional Communtiy throne as
a "Kgoshi", he had royal
blood running in his stream - Rakuta was a Leboho by blood. - See the
evidence of Ngako Richard
Leboho page 15 of this judgment.)
A
question therefore arises whether, Matume Wilson was the rightful
seed raiser. In the first place he is a Leboho by blood. In
the
second
place he was an acting "Kgoshi" after the death of Seiphi
and Mosima. Lastly, according to the custom of Bapedi it is

irrelevant who fathers the heir, so long as (the heir) is born of
timamollo, tlhatswadirope or seantlo. See the Nhlapo Commission

Report page 16. Matume was therefore the rightfully seed-raiser.
Since Mmangako was hlatswadirope or seantlo and Ngako was born
of
Matume and Mmangako it makes Ngako Isaac Leboho a preference to the
throne instead of Tlabo Joseph Leboho.
While
the Kgoshi remains the pinnacle of the tribe or community, his roots
and legitimacy is determined by his mother (Masechaba).
It is for
this reason that the origin of the masechaba is of paramount
importance. The family from which a masechaba originates
is
determined by the royal family. In a number of royal families the
masechaba would come from another royal family or from their
close
relations - such as cousins or grand daughters.
As
already mentioned above, the Basotho speaking people use a linear
system - the shorter Oxford English Dictionary page 1608 defines
it
as "Arranged or measured along a straight line, extended in a
line or length, involving measurement in one dimension only;

involving or exhibiting directly proportional change in two related
qualities; progressing in a single direction by regular stems
or
stages. The linear system in amongst the Bapedi demonstrates the
leaders of the specific regiments and Kings. However, this
is also
determined by a masechaba who must come from a particular family.
There
is evidence that the Bahananwa Royal Family married their masechaba
from the Kubu, Morudu and Rangata families. - See also
Van Schalkwyk
page 117. The mother of the late "Kgoshi" Rachacha Leboho
came from the Morudu family. Rachacha's principal
wife (Maserule
Morudu) came from the Morudu family. However, Rachacha
cut
ties with the Morudu family and took Mamphaku from the Rangata family
and made her his principal wife instead. It is therefore
not cast in
stone that the masechaba from whom the future "Kgoshi" was
to be born always came from the Rangata family.
If the Royal family
discusses the matter and decides on a particular family so would that
be carried.
[34]
The other deciding factor is that the "magadi"
(bride-cattle) or (dowry) must come from the Bahananwa community.

Caiphus Rangata of the Rangata family testified to the effect that
the principal wife of a "Kgoshi" of the Bahananwa

Traditional Community does not only come from the Rangata family but
also from Morudu, Kubu, Makwiteng and Mokgobu. Mmamoyahabo
Thanyane
testified that it was discussed and decided by the elders that a
nubile from the Mokgobu be married as a "Ngwetsi"
for
Mosima in order to revive her house. Counsel for the Respondents
conceded that it would be allowed in exceptional circumstances.

Caiphus Rangata also testified that the Bahananwa approached the
Rangata family for a nubile and they were informed that there
is
none. Under these exceptional circumstances the Bahananwa approached
the Mokgobu family.
It
can be mentioned that Mmangako is not a distant relative. She is said
to be a great grand daughter of Kgoshi Leboho. This exception
or
departure is permissible where at a relevant time the Rangata family
had no nubile available. There is no contradicting evidence
by the
Respondents.
[35]
It is
also
necessary
to discuss the status of
Mafori
Rangata
under this heading. On this aspect the contention of the Applicants
stands to be sustained. It is this that the Respondents
advanced a
theory without any supporting evidence that Mafori was married to
become a "Ngwetsi" for Mosima Rangata in
order
to
revive her house. This theory was advanced under cross-examination.
The evidence before court is that the said
Mafori
was
the wife of the late Acting "Kgoshi" Matume Wilson Leboho
and not a principal wife from whom the future "Kgoshi"
of
the Bahananwa Traditional Community would be born. Further, that
Mafori was not available at the time when the Bahananwa were
seeking
a masechaba from whom a future "Kgoshi" was to be born,
precisely because at the time she was married to Matume
Wilson.
In
addition by 1952 (before the late "Kgoshi"
Seiphi
died
in November 1953, she
already
had
her
oldest
son
with the late Acting "Kgoshi" Matume Wilson and not by the
late "Kgoshi" Seiphi. - (Bundle D pg 30 the letter
dated
10
th
September 1960). In the said letter it is
reported
that
in 1960 there was no successor as "Kgoshi" available. At
that time
CoWlr)
Matee
was
already
born
(in 1952) and he was approximately eight years old. If the theory for
the Respondents were true, then the late
Collin
Matee
would have been the future "Kgoshi" by birth and he would
have been the successor. This would therefore mean that
presently the
contest would be between Ngako
Isaac
and
Matume Wilson Leboho (jnr) and not
Tlabo
Joseph
Leboho.
Another
argument by the Applicants, which I accept, is that current abstract
theory advanced by the Respondents, that the said Mafori
somehow was
married to become a "ngwetsi" for Mosima so as to revive
her house, is in any event contradicted by a different
theory that
was advanced on their behalf previously (although it was not
canvassed fully in oral evidence or during cross - examination,
but
appears clearly from documentary evidence). That other theory is
that, when Mosima died without a son, the Bahananwa Community

allegedly decided to go back to the "second house of Mabea"
as the house from which the future "Kgoshi" of
the
Bahananwa would come, on the basis that Mmanchaku Rangata (the mother
of the late Acting "Kgoshi" Matume Wilson)
then become the
principal wife from whom the "Kgoshi" would spring.
On
this basis the late Matume Wilson Leboho, her oldest son, would then
have been first new "Kgoshi" in a new lineage.
That this
other theory is false appears not only from the undisputed evidence,
but also from the fact that both the late Matume
Wilson and his
oldest son the late Collin Matee had acting appointments, orally and
both expressly indicated that they held that
appointment on behalf of
Ngako Isaac Leboho.(record page 38) However, after having advanced
this other theory to the Premier and
after having obtained the
official recognition of the said Tlabo Joseph Leboho on this basis,
the Respondents abandoned that theory
in favour of a new theory.
Obviously
the old theory did not require a construction that Mafori had to
revive the house of her step sister Mosima and it is
with respect
clear that the new theory about the alleged special status of Mafori
is an after thought and superficial reconstruction
so that the
Respondents can tack their sails to the wind: up to the initiation of
these proceedings, one was not aware of any document
or statement on
behalf of the Respondents claiming that Mafori Rangata had to revive
the house of her step sister Mosima Rangata.
[36]
Even more ambivalence appears from the answering affidavit of the
said Tlabo Joseph (the second respondent) which was filed
in the
review application proceedings. Therein he states under oath that his
mother (Mafori Rangata) was the principal wife of
the late "Kgoshi"
Seiphi Leboho - See Bundle C page 158. He also states under oath in
the same breath that his mother
was the principal wife of the late
Acting "Kgoshi" Matume Wilson Leboho - See Bundle C page
160. In addition there is
no allegation in the said answering
affidavit that Mafori had to revive the house of her step sister
Mosima. On the contrary, instead
of being portrayed as a "Ngwetsi"
for Mosima she is artificially elevated to a principal wife in her
own right as if
she established her own house. This is with respect
yet another indication that the new theory about the alleged special
status
of Mafori was an opportunistic construction resulting from the
ingenuity of the Respondents.
In
my view, this serves to confirm why the Respondents closed their case
without calling any witnesses, and claiming instead absolution
from
the instance. In fact the whole case for the Respondents may fall on
this point alone.
It
is therefore my considered view that the procedure followed by the
Bahananwa when Mmangako was married was proper and is therefore

valid. This is based on the evidence of Tshwenyegi who testified that
"magadi" in the form of five (5) head of cattle
for
Mmangako Mokgobu (Ngako's mother) was agreed upon and paid to her
family from the cattle of the Royal Kraal, whereafter she
moved to
the Royal Kraal. This evidence was never disputed or challenged by
the Respondents. The allegation that Mmangako came
into the Royal
family as Matume's wife cannot stand because there was no evidence
that Matome paid "magadi" for Mmangako.
[37]
The
Respondents aver that Mmamoyahabo Thanyane contradicted this
evidence. This is absurd, in that although she might have
contradicted
herself on the issue of the emissary, she was very clear
that "magadi" were delivered. It is therefore clear that
Mmangako
was married as a "Ngwetsi" or Seantlo to revive
the house of Mosima. This therefore brings us to the question whether

Ngako should be regarded as Seiphi and Mosima's son.
Status
of Ngako Isaac Leboho
The
truth of the matter is that after the death of "Kgoshi"
Seiphi in 1953, the Bahananwa Royal Family could not fill
his vacant
position because there was no successor to the throne. Ngako Isaac
Leboho enjoys the support of Ntikane Phillip Leboho
(known as
Tshwenyegi and the first witness for the Applicants). The said
Tshwenyegi is the chief senior councillor of the Royal
Family of the
Bahananwa Traditional Community. He is in fact the most senior of the
"bakgoma" since 1995, after Tlhatlhudi
died in that year.
Tshwenyegi's son one Richard Peaha Leboho set the record straight
when he testified that in fact Tlhatludi was
not the most senior
mokgoma, that the most senior mokgoma was his father Tshwenyegi.
Documentary evidence in a form of an extract
from the Doctoral Thesis
of Van Schalkwyk indicates that by 1995 Phillip Leboho was the chief
senior councillor - Bundle E page
118. This allegation of the status
of Tshwenyegi was also made in the founding affidavit for the review
application without any
contrary version being stated in the
answering affidavit - Bundle A (pages 37 -38).
[38]
Tshwenyegi testified that he regards the said Ngako Isaac as his
elder brother and the oldest son of "Kgoshi" Seiphi
Leboho
and Mosima. Matume Wilson (jnr) the grandson of Matume, testified
that he regards Ngako Isaac as the senior in status as
did his late
father Collin. This was corroborated by Richard Pheaha. The
undisputed evidence before court is that Mosima as masechaba
was to
bear the future "Kgoshi" and not from the second house of
Mabea or the house of Mafori.
While
Mosima was still alive, so is the evidence before court, the eiders
of the Royal family met and discussed the issue of succession
to the
throne. Tshwenyegi was present when it was agreed that the Rangata
family should be approached for a 'daughter in law' to
revive
Mosima's house. After the Rangata family had indicated that they had
no daughter, the Mokgobu family was then approached
and it is where
Mmangako was indentified as a possible "Ngwetsi". Mmangako
was then married in order to revive Mosima's
house, Mmangako was
selected because she was the great grand daughter of one Mmamphoku
Rangata and a great grand daughter of the
late "Kgoshi"
Rachacha Leboho. Mmangako therefore had in her stream the Rangata
blood as well as Leboho blood.
Acting
"Kgoshi" Matume Wilson (who is the stepbrother of the late
"Kgoshi" Seiphi was identified as the seed-raiser
who
fathered Ngako Isaac on behalf of the late "Kgoshi" Seiphi.
This institution, custom or tradition of seed raising
is widely
recognised in traditional communities. A seed raiser is identified
from amongst the younger brothers or the sons of the
younger brothers
of the late "Kgoshi". It is therefore not surprising that
Matume was so identified. Even if his biological
father could be
Rakuta, according to the Bapedi custom he is regarded as the sonof
Mabea.
The
(family tree) or (genealogy) marked K reflects Mmangako as a
"Ngwetsi" of Mosima. It also reflects Ngako Isaac as
the
eldest son of the late "Kgoshi" Seiphi. The genealogy is
consistent with the evidence of Tswenyegi, and Richard Pheaha.
There
is no document prepared by the Respondents which indicates that any
offspring of Mafori was regarded as a child of the late
"Kgoshi"
Seiphi and his principal wife Mafori.
[39]
Acting "Kgoshi" Matume Wilson and his late son acting
"Kgoshi" Collin Mattee held their acting appointments
on
behalf of Ngako Isaac. This is also confirmed by the fact that, while
Mosima acted as regent, Mafori was never appointed to
act as
masechaba. Moreover, Matume was identified as a seed-raiser.
The
fact that Matume announced at the cleansing ceremony that his
mother's property should be divided amongst his wives (including

Mafori) and his children and that Mmangako and Ngako would receive
their share from the Royal family property was a concession
that
Ngako is the dejure future "Kgoshi" of the Bahananwa.
Evidence further shows that Collin Matee also confirmed this
by
telling his wife and children that Ngako is the future "Kgoshi".
It must be noted that Collin Mattee and Tlabo Joseph
are the
biological children of Matume Wislon and Mafori.
One
can but conclude that though knowledgeable that Matume held that
position in an acting capacity and which was common sense to
Collin
Mattee from that premise they made a deduction which is their
syllogism. I must confess that with the limited knowledge
and
experience that I hold, I have never come across an instance where
children of the same father and mother would succeed one
another as
"Dikgoshi"
for the same tribal community. If anything, to the extent that Matume
was the rightful heir, maybe his son
Collin could have become a
"Kgoshi", but it is clear from the evidence that he too is
not a rightful heir. If that be
the case there is no way in which his
two younger brothers could have become "Dikgoshi". Instead,
maybe his son Matume
Wilson (jnr) could enter the fray. In the
absence of any evidence to the contrary, Ngako Isaac Leboho qualifies
as the heir to
the throne.
Certain
documentary evidence on the identification of the heir to the throne.
During
cross-examination of Tswenyegi, the Respondents relied on a letter
dated 21 December 2005, for alleged proof that the Tribal
Council of
the Bahananwa Traditional Community as well as the Royal Council of
the Bahananwa Traditional Community duly identified
Tlabo Joseph
Leboho as the person who qualifies to assume the position of the next
"Kgoshi" - Bundle A pages 68 -70.
One
is bound to support the version of the Applicant in that the authors
of these letters were not called as witnesses and there
is no witness
who confirmed the contents thereof under oath. As a result no
reliance can be placed on these letters.
There
is also evidence that no such meeting as reflected on the said
documentary evidence was ever held. Tswenyegi as the most senior

mokgoma ad convenor of the Royal Council denied ever calling or
attending such a meeting. There are names and signatures of certain

people who are purported to have attended the meeting who were not
present or did not qualify to be present at such a meeting.
There is
also evidence by Shadrack Makwiting that the documentation was
fabricated as a ploy to outmanoeuvre Ngako Isaac Leboho.
During the
review application only one letter formed part of the original
record. The second letter purporting to be from the royal
Family and
allegedly carrying signature of Tshwenyegi, who as we know from his
evidence can neither read nor write, came to the
fore without any
explanation under oath as to why both letters were not available from
the outset - Letter appearing in Bundle
G was not originally filed
when this Bundle was compiled - page 30 of Judgment. The letters also
reflect names of people who are
not bakgoma of the Bahananwa
Traditional Community. This is further exacerbated by the fact that
Tlabo Joseph Leboho who was to
be identified as "Kgoshi"
also particiapated in the alleged meetings where he was allegedly so
identified. This is unheard
of in the Bapedi tradition. One is
therefore bound to conclude that the letters were fabricated.
[40]
This then takes me back to the aspect that I raised above concerning
interference in matters of the royal succession. The royal

institution is very noble and it should be left alone to administer
its affairs without interference by government officials. There
is
evidence before court that an official from the Premier's office
conducted meetings of the Royal Council where the issue of
the
identification of a future "Kgoshi" was discussed. Some
officials even went to the extent of preparing a genealogy
for the
Royal Family. This is a matter that could have been left in the hands
of the family and experts. While it is accepted that
the royal
institution cannot exist in limbo, it must also be emphasised that
this institution should be allowed some independence.
APPLICATION
FOR ABSOLUTION FROM THE INSTANCE.
[41]
As already indicated above, the Applicants tendered evidence of a
number of witnesses, where after the Respondents closed their
case
without calling a single witness. The Respondents then launched an
application for absolution from the instance.
At
the close of the case for the Plaintiff, therefore, the question
which arises for the consideration of the court is: "Is
there
evidence upon which a reasonable man might find for the Plaintiff? If
the Defendant does not call any evidence but closes
his case
immediately, the question for the court would then be:" Is there
such evidence upon which the court ought to give
judgment in favour
of the Plaintiff?" If the evidence is not only not convincing,
but actually found by the trial Court to
be an utter fabrication or
if it be a fact that it is too vague and contradictory to serve as
proof of the question in issue, then
it would be evidence on which a
reasonable man would not find and the Court would be perfectly
justified in granting absolution
from the instance at the close of
the case for the Plaintiff - Ruto Flour Mills (Pty) Ltd v Adelson (3)
SA 1958 (4) 309 (T) at
309 ( E-F). In casu, the (Applicants) and the
(Respondents) have closed their cases, albeit the Respondents did not
tender any
evidence. The court is dealing with a comprehensive case,
where there is a possibility of some contradictions in the witnesses'

evidence. In my opinion the contradictions do not paralyse the
Applicants' case. Further, it does not seem that there are any
fabrications in the evidence of the Applicants. Since the Respondents
did not adduce any evidence, it would appear that there is
no need
for the court to fall back on the onus of proof in order to make a
final finding. Applicants now only carry a burden to
show a prima
facie case which in the absence of any contrary evidence becomes
conclusive.
"In
Ex Parte Minister of Justice: in re R v Jacobson and Levy, Stratford
JA said:
"Prima
facie evidence in its usual sense is used to mean prima facie proof
of an issue, the burden of proving which is upon
the party giving
that evidence. In the absence of further evidence from the other
side, the prima facie proof becomes conclusive
proof and the party
giving it discharges his onus".
In
order to survive absolution a Plaintiff had to make out a prima facie
case in the sense that there was evidence relating to all
the
elements of the claim, because, without such evidence, no court would
find for the Plaintiff. As for the inferences, from the
evidence were
concerned, the inference relied upon by the Plaintiff had to be a
reasonable one, not the only reasonable one. In
this respect, a court
ought not to be concerned with what someone else might think that is
another 'reasonable' person or court,
but rather with its own
judgment. Absolution should be granted sparingly but when the
occasion arose, a court should order it in
the "interest of
justice" - Gordon Lloyd Page & Associates v Rivera and
Another
2001 (1) SA 88
SCA. The inferences that the Plaintiff may
rely on are reasonable. There is sufficient evidence relating to all
the elements. In
my opinion this is not one of the cases in which the
occasion for absolution from the instance has arisen.
43]
In the circumstances I find no reason why absolution from the
instance should be granted.
[44]
CONCLUSION
Despite
a few discrepancies in the testimonies of Mmamoyahabo Thanyane and
one Makwiting, the evidence tendered by the Applicants
is
overwhelming in a material respect. There is no way in which their
version can be faultered. During cross-examination the Respondents

were vigorous that they would call a number of witnesses to
contradict the version of the Applicants. Nothing of the sort
happened
- the Respondents closed their case without calling a single
witness. It is my considered view that the Applicants succeeded in

proving their case on a preponderance of probabilities.
This
therefore gives me an opportunity to formally receive of the
documentary evidence tendered, but for a letter handed in by the

Respondents which appears in Bundle A - 69 but not appearing in
Bundle G. The hearsy evidence tendered by certain witnesses was

confirmed by eye witness. To that extent the hearsy evidence is found
to be admissible.
In
the circumstances I have come to the following, conclusion that:
(a)
When considering the identification of a future "Kgoshi"
the Bahananwa Royal Council was not properly constituted
because
present at the meeting were people who were not members of the said
council, and therefore the council failed to observe
the customary
law, customs and processes of the Bahananwa Traditional Community.
(b)The
second Respondent, Tlabo Joseph Leboho sat at the proceedings of a
meeting where he was identified as "Kgoshi".
(c)
The said Tlabo Joseph Leboho does not belong to the house whose sons
are legible to ascend the throne.
(d)Tlabo
Joseph Leboho's mother one Mafori is neither a timamollo,
tlhatswadirope nor a seantlo, and therefore she did not qualify
to
bear a future "Kgoshi".
(e)
Tlabo
Joseph Leboho was not a leader of a regiment (mphato).
(f)
The
Premier failed to recognise the person so identified by notice in the
Gazette.
(g)
By
recognising Tlabo Joseph Leboho, as senior traditional leader or
"Kgoshi", the Premier acted
ultra-vires
because
there was evidence or allegations that the identification of the said
Tlabo Joseph Leboho, was not done in accordance with
customary law,
customs and processes of the Bahananwa Traditional Community.
(h)
In
the absence of any evidence to the contrary, Ngako Isaac Leboho
should qualify as the heir to the throne.
The
court has been approached to grant an order in terms of prayers 1.1,
1.2, 1.3 and 1.4. Much as the court might have formed an
opinion on
this matter, it would be disingenuous of me to make an order in terms
of prayer 1.3. This will be tantamount to installing
or recognising
Ngako Isaac Leboho as "Kgoshi" and thereby usurping the
powers of the Premier and all the relevant structures.
While it might
be necessary to make an order in exceptional instances,
I
am
not tempted to do that in this case. Even if one is of the view that
the proper procedures and processes were not followed in
the
recognition of the 2
nd
Respondent, one is also mindful of the separation of powers and the
respect that must be accorded to the executive and its
administration.
I am therefore enclined to making an order in terms
of prayer 1.1 without any correction and 1.2. Prayer 1.3 is therefore
considered
but not granted. Proper procedures and processes must
still be followed to identify and recognise the "Kgoshi".
The
Respondents have submitted that the court should make a punitive cost
order. First, in view of the fact that the Respondents
were
threatening to call their witnesses which did not materialise. Second
because the matter started as an ordinary review application
which
culminated into a long trial because of the factual disputes arising
from the answering affidavit. It is now clear that the
factual
disputes were not genuine. The Respondents were not candid with the
court. One other important aspect is that the Respondents
litigated
through the office of the Premier.
In
the result I make the following order:
1.
The
First Respondent's official recognition of the Second Respondent;
Tlabo Joseph Leboho, as a senior traditional leader or "Kgoshi"

of the Bahananwa Traditional Community with effect from the 6
th
September 2006 per decision No 123/2006 is declared null and void,
reviewed and set aside.
2.
The
First and Second Respondents, are jointly and severally ordered to
pay the costs of this application on a scale as between attorney
and
own client, the one paying the other to be absolved.
TJ
RAULINGA
JUDGE OF
THE HIGH COURT NORTH GAUTENG HIGH COURT