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REPUBLIC OF SOUTH AFRICA


IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE )

CASE NO : 5799/2018
AND
CASE NO: 2950/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
SIGNATURE : Naude –Odendaal J
DATE : 21/01/2025

In the matter under Case No 5799/2018 between: -

WILLIAM M ATSORANG SEKGOPO Applicant

And

THE PREMIER OF LIMPOPO PROVINCE First Respondent

MOKGADI JOSEPHINE SEKGOPO Second Respondent

THE MEC FOR CO -OPERATIVE

GOVERNANCE AND HUMAN SETTLEMENT
AND TRADITIONAL AFFAIRS Third Respondent

THE COMMISSION ON TRADITIONAL
LEADERSHIP DISPUTES AND
CLAIMS (“CTLDC”) Fourth Respondent

LIMPOPO PROVINCIAL COMMITTEE ON
TRADITIONAL LEADERSHIP DISPUTES &
CLAIMS (CTLDC) Fifth Respondent

COMMISSIONER KGATLA N.O Sixth Respondent

DR P. X SHILUBANE N.O Seventh Respondent

MR T. MAHOSI N.O Eighth Respondent

DR M.W MHLABA N.O Ninth Respondent

SEKGOPO TRADITIONAL COUNCIL Tenth Respondent

SEKGOPO ROYAL FAMILY Eleventh Respondent

AND in the matter under CASE NO 295 0/202 4 between: -

SEKGOPO TRADITIONAL COUNCIL First Applicant

MOKGADI JOSEPHINE SEKGOPO Second Applicant

and

THE COMMISSION ON TRADITIONAL LEADERSHIP, First Respondent

DISPUTES AND CLAIMS (“CTLDC”)

LIMPOPO PROVINCIAL COMMITTEE ON Second Re spondent
TRADITIONAL LEADERSHIP DISPUTES AND
CLAIMS

COMMISSIONER KGATLA N.O. Third Respondent

DR. PX SHILUBANE N.O . Fourth Respondent

DR. MW MHLABA N.O. Fifth Respondent

MR. T MAHOSI N.O. Sixth Respondent

WILLIAM MATS ORANG SEK GOPO Seventh Respondent

THE PREMIER OF THE LIMPOPO PROVINCE Eighth Respondent

THE MEC FOR CO -OPERATIVE GOVERNANCE, Ninth Respondent
HUMAN SETTLEMENTS AND TRADITIONAL
AFFAIRS

LIMPOPO PROVINCIAL HOUSE OF TRADITIONAL
LEADERS Tenth Respond ent

SEKGOPO ROYAL FAMILY Eleventh Respondent


JUDGMENT

NAUDE –ODENDAAL J:


[1] The above two matters came before me as a special allocation. The parties agreed
that the interlocutory applications became moot. Both matters under case number
5799/201 8 and case number 2950/2024 were heard as one for purposes of
determination o f the merits on both simultaneously. There was also the question of
condonation in respect of the late bringing of the review application under case
number 2950/2024 and the late filing of the replying affidavit under case number
5799/2018. The crisp issu e, in essence to be determined, is who the rightful heir to
the position of senior traditional leader of the Sekgopo Traditional Community is.
For ease of reference, the respecti ve parties will be referred to as “William”,
“Josephine”, “The Premier”, “The MEC”, etc.

[2] I will deal with Case No: 5799/2018 first and thereafter with Case No: 2950/2024.

CASE NO: 5799/2018 :-

[3] William Matsorang Sekgopo (“William”) was the Applica nt in this matter. He applied
that the decision of the Premier taken on 23 A pril 2018 not to approve the
recommendation that his claim for the restoration of the Sekgopo Senior Traditional
Leadership be granted, as contained in the report by the Provincia l Committee of the
Commission on Traditional Leadership Disputes and Claims d ated the 4th of
December 2017, be reviewed and set aside. Further that the decision of the Premier
taken on 23 April 2018 be varied in terms of the provisions of Section 8(1)(c)( ii)(aa)
of the Promotion of Administrative Justice Act, 3 of 2000 and substit uted with the
following decision: -

“The following recommendation of the fifth respondent in its report dated 4
December 2017 is approved: ‘In the light of the evidence and findin gs above, the
Commission hereby recommends that the claim of Sekgopo Matsoran g William for
the restoration of Sekgopo Senior Traditional Leadership to the rightful lineage of
Mamakobe be granted.”


[4] William further applied that the following declaratory orders be made in terms of
Section 8(1)(d) of the Promotion of Administrativ e Justice Act, 3 of 2000: -

4.1 That the Second Respondent, Josephine Mokgadi Sekgopo, does not
qualify to be the candle wife/mmasetsaba of the late Piet Motshotsho
Sekgopo;

4.2 That according to the Sekgopo Custom ary Law the candle wife of the
Senior Traditional Leader of the Sekgopo Traditional Community has
to be married from the Maake/Maupa family;

4.3 That the Senior Traditional Leadership of the Sekgopo Traditional
Community s hould be restored to the rightful lineage of the late
Mamakobe Sekgopo who pa ssed away in 1922, more in particular to a
successor born from the said Mamakopbe Sekgopo’s candle wife from
the Maake family;

4.4 That the Applicant, William Matsorang Sekgopo II , is the rightful heir to
the position of Senior Traditional Leadership of th e Sekgopo
Traditional Community.

[5] William further applied that the Premier be ordered to remove Josephine form her
position as Acting Senior Traditional Leader of the Sekgopo Traditional Community
in terms of the provisions of Section 15(4) of the Limp opo Traditional Leadership and
Institutions Act, 6 of 2005, with effective date being the date on which William is
recognised as the Senior Traditional Leader of the Sekgopo Tradi tional Community,
alternatively that it is ordered that the position held by Josephine as Acting Senior
Traditional L eader for the Sekgopo Traditional Community shall lapse in accordance
with Section 13(8) of the Traditional and Koi -San Leadership Act, 3 o f 2019, on such
date as William is recognised by Notice in the Provincial Ga zette as the Senior
Traditional Leader of the Sekgopo Traditional Community.


[6] Further, William applied that the Premier be ordered to recognise him as the Senior
Traditional L eader of the Sekgopo Traditional Community in terms of the provisions
of Sect ion 8(2)(d) and 8(3) of the Traditional and Koi -San Leadership Act 3 of 2019,
read with the provisions of Section 12(1)(b) of the Limpopo Traditional Leadership
and Institutions A ct, 6 of 2005, and further be ordered to take the following steps
within 2 mo nths after date of this order: -

6.1 By notice in the Provincial Gazette recognise him (William) as the person
identified by the Sekgopo Royal Family in a resolution taken on 21 Fe bruary
2011 as the Senior Traditional Leader of the Sekgopo Traditional Commu nity;

6.2 Issue a certificate of recognition to him ( William) as Senior Traditional Leader
of the Sekgopo Traditional Community;

6.3 Inform the Provincial House of Traditional Lea ders and the relevant Local
House of Traditional Leaders of the recognition o f William as Senior
Traditional Leader of the Sekgopo Traditional Community.

[7] Lastly, William, applied for costs against the first (the Premier), second (Josephine)
and third (the MEC) respondents, jointly and severally, the one to pay, the other to
be absolved.

THE APPLICANT’S (WILLIAM’S) SUBMISSIONS AND ARGUMENT: -

[8] William contends that he is the ri ghtful heir to the position of Senior Traditional
Leader of the Sekgopo Tr aditional Community (“the Sekgopo”), a community duly
recognised as such in t erms of the now repealed Traditional Leadership and
Governance Framework Act, 41 of 2003 (the “Framework Act”), the Limpopo
Traditional Leadership and Institutions Act, 6 of 2006 (the “LTLIA” or “Limpopo Act”),
and the Traditional and Khoi -San Leadership A ct 3 of 2019 (the “Leadership Act of
2019”).


[9] The second respondent, Josephine Mokgadi Sekgopo, holds the position of Acting
Senior Traditional Leader of the Sekgopo Traditiona l Community, acting as Regent
for her son Koma, who she claims should be the next senior traditional leader of the
Sekgopo Traditional Community.

[10] It is common cause between the parties that Mamakobe Sekgopo (1870 - 1922) was
the last undisputed Kgoš i (senior traditional leader) of the Sekgopo Traditional
Community . The unde rlying dispute between William and Josephine as to who the
rightful heir to the Sekgopo throne is, originated from Mamakobe’s succession.

[11] The disputes between William and Josephine over the leadership position date back
many decades and have been th e subject of previous litigation:

11.1 Immediately after the recognition of the second respondent as acting
traditional leader in 1992 by the Lebowa Government, William and the
Sekgopo Royal F amily objected to her appointment and lodged a series of
complaints w ith government as well as a claim with the Ralushai Commission.
This history is fully set out in paragraph 18 of the supplementary founding
affidavit, Bundle 2 at pages 134 to 143 and also in the Memorandum to the
Premier dated 7 September 2010, annexure “ A” to the founding affidavit,
Bundle 1 at pages 14 – 20. According William’s version, s everal Magistrate’s,
the Commission on Traditional Authorities and the Ralushai Commission
which heard evidence on this dispute on 27 February 1997, all concluded that
William is Mamakobe’s rightful successor.

11.2 Following upon an application by William to the Premier’s predecessor, and
after an investigation by the anthropological section of the th ird respondent’s
Department, the then Premier made a decision during 2010 tha t William
indeed is the ri ghtful heir to the position of Senior Traditional L eadership and
that Josephine should be removed as Acting Senior Traditional L eader. This
decision was in line with the findings and recommendations of the Ralushai

Commission. Josephine obtained interdicts against the Premier from giving
effect to the decision which were again later dismissed.

11.3 That decision was not executed by the then Premier in view of the fact that
William had also lodged an application with the Commission on T raditional
Leadership Disputes and Claims (the “CTLDC” – fourth respondent) for
restoration of the position of Senior Traditional Leader to him. That claim
was heard by the Limp opo Provisional Committee of the CTLDC (commonly
known as the “Kgatla Commiss ion”) which, after hearing evidence from both
sides, also came to the conclusion that William is the rightful heir to the
Sekgopo leadership position. The Kgatla Commission recom mended on 4
December 2017 that William’s claim for restoration of the Sekgopo Senior
Traditional leadership position to his lineage be granted.

[12] On 23 April 2018 the Premier decided not to approve the recommendation of the
Kgatla Commission, despite h is predecessor’s decision in 2010 that William is
indeed the rightful heir. This decision led to the present review application.

[13] After considering William’s amended Notice of Motion and S upplementary Founding
Affidavit in terms of Rule 53(4) which w ere delivered on 30 March 2022, together
with that portion of the Record on w hich William relies, the Premier and the MEC for
Co-operative Governance, Human Settlement and Traditional Affairs (“the MEC”) by
notice withdrew their opposition to the review ap plication and filed a further notice to
abide this Court’s decision.

[14] Only the Second (Josephine) and Tenth (Sekgopo Traditional Council) R espondents
therefore still oppose the relief sought by the applicant in the amended Notice of
Motion.

THE LEGA L FRAMEWORK AS PER THE APPLICANT’S SUBMISSIONS :


[15] Chapter 12 of the Consti tution of the Republic of South Africa expressly recognises
the institution, status and role of traditional leadership according to customary law,
subject to the Constitution.

[16] Over the years the institution of traditional leadership has been interf ered with,
undermined, distorted and eroded mainly by repressive laws of the past. (See See
Bapedi Marote Mamone v Commission on Traditional Leadership Disputes and
Claims 2015 (3 ) BCLR 268 (CC) at par [21 ]; Bapedi Marote Mamone v Commission
on Traditional Leadership Disputes and Claims [2012] 4 All SA 544 (GNP) at
paragraph [1].) Customary law is now afforded its rightful place within South African
law. (See Alexkor Limited & Anot her v Richtersveld Community & Others 2004 (5)
SA 460 (CC) at para [51]). Section 211(3) of the Constitution provides that Courts
must apply customary law when that law is applicable, subject to the Constitution
and any legislation that specifically deals with customary law. It was submitted that
in the present case this Court wi ll be required to adjudicate this review application
applying the customary law of succession of the Sekgopo Traditional Community.

[17] In order to restore the integrity and l egitimacy of the institution of traditional
leadership in line with customary law and practices, Parliament enacted legislation
that gave effect to the constitutional imperative in the form of the Traditional
Leadership and Governance Framework Act, 41 of 2003 (the “Framework Act”) and
provincial legislation such as the Limpopo Act . The Framework Act has been
repealed by the Traditional and Khoi -San Leadership Act, 3 of 2019, with effect
from1 April 2021. The present review application commenced before the repeal of
the Framework Act with the result that both the Framework Act a nd the Leadership
Act of 2019 are applicable.

[18] The pre -amble to the Framework Act set out, amongst others that the State, in
accordance with the Constitution seeks to restor e the integrity and legitimacy of the
institution of traditional leadership i n line with customary laws and practices. The
preamble further set out that the institution of traditional leadership must be
transformed to be in harmony with the Constitution and the Bill of Rights so that,

amongst others, the institution of traditiona l leadership must derive its mandate and
primary authority from applicable customary law and practices.

[19] As discussed in Bapedi Marote Mamone v Commission on Traditional Leadership
Disputes and Claims 20015 (3) BCLR 268 (CC) at para [13] and [14] by the
Constitutional Cour t, the “entire Chapter 12 of the Constitution is devoted to matters
pertaining to traditional leadership and customary law. Section 211 proclaims that
the institution of traditional leadership is recognised. This recognition is e xtended to
the status and the role played by traditional leadership in our society. It is apparent
from the language of the section that recognition was given to an institution w hich
was already in existence, having been established in terms of customary law”.

[20] The Framework Act which was passed by Parliament in 2003 gave effect to Chapter
12 of the Constitution. The Commission on Traditional Leadership Disputes and
Claims (the “CTLDC”) was established in terms of section 23 of the Framework Act
and this Commission had to “ carry out its functions in a manner that is fair, objective
and impartial”. The CTLDC could, of its own accord, or upon the request by an
affected party investigate and make decisions on traditional leadership disputes.
Those ma tters were listed in section 25(2) of the original Framework Act and
included (a) “ cases where there was doubt that a kingship, senior traditional
leadership or headmanship was es tablished in accordance with customary law and
customs ”; (b) “instances where the title or right of the incumbent to a traditional
leadership position was contested …”. It was submitted that b oth these subsections
are relevant to the present dispute.

[21] Section 25(3)(a) further instructed the CTLDC to “ consider and apply customa ry law
and the customs of the relevant traditional community as they were when the events
occurred that gave rise to the dispute or claim”. In Mamone at paragraph [20] the
Const itutional Court held that this particular subsection was a clear indication t hat
the Framework Act was to be applied retroactively to disputes and claims that arose
before the Framework Act came into force. In the present case William lodged his
claim wit h the original CTLDC (the “old Commission”) on 20 June 2005.


[22] The CTLDC h ad a limited lifespan and its term expired in January 2010 . (See
Mphephu v Mphephu -Ramabulana [2019] 2 All SA 51 (SCA) .) It is defined as the
“old Commission” in section 28(11)(a) of the Framework Act after its amendment by
the Traditional Leadership and G overnance Framework Amendment Act, 2009. The
Amendment Act established the “new Commission” as the successor in law of the
old Commission as it existed immediately before the Amen dment Act. Section
28(11)(b) of the Framework Act provided that all disputes and claims that were
before the old Commission are deemed to have been lodged with the new
Commission.

[23] In the present case the old Commission, due to its workload, did not consider
William’s claim before its term expired. William’s claim was only c onsidered by the
new Commission which was established in section 22 of the Framework Act after its
amendment. The new Commission could only make recommendations in respect of
traditional leadership disputes before it, in contrast to the old Commission whic h
made binding findings. Section 15(3)(a) of the amended Framework Act however
had a similar requirement, namely that the Commission must consider and apply
customary law and the customs of the relevant traditional community as they applied
when the event s occurred that gave rise to the dispute or claim .

[24] It was submitted that Section 26 of the Framework Act provided that the
recommendation of the Commission must be conveyed in a case such as the
present to the relevant Provincial Government and any o ther relevant functionary to
which the recommendation of the Commission applies in accordance with applicable
provincial legislation. It was further submitted that i n the present case the provincial
legislation which is applicable, is the Limpopo Act whic h places the obligation to act
upon the decisions of the Commission on the Premier. In terms of section 26(3) of
the Framework Act the Premier had to make a decision on the reco mmendation of
the Commission within a period of 60 days. Section 30 of the L impopo Act obliges
the Premier to obtain the advice of the Provincial House of Traditional Leaders on
the implementation of such decision . (See Langa v Premier, Limpopo 2022 (3)

BCLR 367 (CC) at par [13] where the Court held that the word ‘decision’ in sec tion
30 of the Limpopo Act should now be read as ‘recommendation’.)

[25] The Framework Act made provision for the establishment of provincial committees
for the CTLDC to deal with disputes and claims relating to traditional leadership. In
the Limpopo Prov ince the provincial committee of the CTLDC was commonly known
as the Kgatla Commission, so named after its Chairperson. It is the Kgatla
Commission that heard William’s claim on 14 July 2017 at a public hearing at which
both William and Josephine gave ev idence. The Kgatla Commission recommended
on 4 December 2017 that William’s claim be accepted.

[26] Section 63(10) of the Leadership Act of 2019 provides that the CTLDC which wa s
established by section 22 of the Framework Act (the new Commission) shall
continue to function in accordance with the provisions of sections 21 to 26A of the
Framework Act “ until the expiry of its term of office, subject to section 25(4)(b) of the
Framew ork Act”. Section 63(10(b) of the same Act provides that any
recommendation by the CTLDC remains valid notwithstanding the repeal of the
Framework Act.

[27] The CTLDC and its provincial committees, including the Kgatla Commission, were
organs of state as defined in S ection 239 of the Constitution and in conducting their
invest igations, were exercising public powers and performing public functions in
terms of the Framework Act. Their findings and recommendations are therefore
reviewable under PAJA, but more importantly, continue to be binding administrative
actions until set asi de by a Court . (See Mamone v CTLDC [2012] 4 All SA 544
(GMP) at para [9] , confirmed on appeal by the SCA in Bapedi Marota Mamone v
Commission on Traditional Leadership Disputes an d Claims & Others 2014 (3) All
SA 1 (SCA) at para [17] ). As pointed out in Premier of the Eastern Cape v Hebe
[2018] 1 All SA 194 (ECB) at paragraph [63], the Premier derives the power to make
a decision on the recommendation made in terms of the Framework Act by the
CTLDC or its provincial Committee from the Framework Act. The re commendation

is a jurisdictional fact and a prerequisite for the exercise by the Premier of his
authority as contemplated in section 26 of the Framework Act.

THE APPLICANT’S ( WILLIAM’S) CLAIM AND THE SEKGOPO HISTORY AND
CUSTOMARY LAW OF SUCCESSION AS P ER THE APPLICANT’S (WILLIAM’S)
VERSION: -

[28] The Applicant (William) submitted that, both the CTLDC and the Kgatla Commission
had the obligation in terms of section 25(3((a) of t he Framework Act to consider and
apply the customary law and customs of the S ekgopo Traditional Community as they
applied when the events occurred that gave rise to the dispute or claim. Section
211(3) of the Constitution provides that a Court must apply customary law when that
law is applicable, subject to the Constitution and th e legislation specifically dealing
with customary law.

[29] The Sekgopo customary laws of succession which were applicable at the time when
Josephine married her late husband P iet Motshotsho; the applicable customary law
on whether she can be regarded a s his “ candle wife” ; as well as the Sekgopo
customs on succession following the death of the last undisputed Kgoši of the
Sekgopo, namely Mamakobe Sekgopo, are therefore of crucia l interest in the
present application.

[30] The Sekgopo customary law and cu stoms regarding their succession have been
established through the documents which William submitted with his 2005 claim
lodged with the CTLDC and the further documentation that h e lodged with a new
Commission in 2012. These customs were also discussed an d confirmed in the
Ralushai Commission’s report, on which William relied for his claim, and in the
investigation which the Premier’s office conducted in 2010 and in which reliance
were placed on various reports by Magistrate’s exercising jurisdiction over the
Sekgopo, and also in the Kgatla Commission’s report under review. It was
submitted that William has also for purposes of the review application,
commissioned a well -known ant hropologist, Prof. Chris van Vuuren, to

independently investigate the history , customs and customary law of the Sekgopo
Community. Prof. Van Vuuren’s affidavit and report form part of the papers before
Court. This report came to the same conclusions as the Ralushai Commission, the
Premier’s advisors in 2010 and the Kgatla Commis sion.

[31] It was submitted that William fully dealt with these customs and the applicable
customary law in the supplementary founding affidavit , which need not be re peate d
herein in full. The following summary should suffice:

31.1 The successor to the thr one of the Sekgopo Kgoši must be born of the Kgoši’s
“tribal wife ” or mmasetšaba (“mother of the nation ”), popularly referred to as
the “candle wife” . The choosing of a candle w ife for the Kgoši constitutes a
social contract between the royal family and the Sekgopo Community. The
Royal Council (the Bakgomana) plays an important role in the selection of the
tribal wife.

31.2 In respect of the Sekgopo, the mmasetšaba has to be select ed from the
Maake (Maupa) family of Kgaga. In the present case it was common cause,
and also so admitted by Josephine in the public hearing with the Kgatla
Commission, that Mamakobe Sekgopo (born approximately 1870) was born
from the marriage between his father, Kgoši Motsheudi Sekgopo and his
candle wife, Mamaphoko Maake from the Maake (Maupa) family.

31.3 It was submitted that t he mmasetšaba is very seldom the first wife (in
chronological order) married by the Kgoši. The birth of the first born son of the
mmasetšaba is viewed as the fulfillment of the social contract between the
royals and the people. If the candle wife is however infertile, or only bears
female children, or dies before the birth of a male heir, that is not the end of
the contr act between t he members of the Community and the Royal H ouse
and not the end of the agreem ent between the Royal House of Sekgopo and
that of Maake, from which the tribal wife comes. In such a case the Royal
Counci l of Sekgopo would request the Royal H ouse at Maake t o avail a

supplementary or surrogate wife, who is often a younger sister of t he
mmasetšaba, to continue the contract. Any children born from her are
regarded as the children of the original mmasetšaba.

31.4 The mmasetšaba may also be selected after the deat h of the Kgoši if he died
before his rightful successor is born. One of the royal family members are
then requested to act as a seed raiser and any male child born of this union
from the mmasetšaba or her surrogate, are regarded as the successor of the
late Kgoši. According to William, t his is what happened in the present case. It
was submitted that t o someone unfamiliar with customary law, such customs
may appear strange, but as was illustrated in the recent judgment by
Makgoba JP in Thulare v Thulare a nd Others [2022] ZALMPPHC 53 (19
October 2022) , this Court recognises and app lies such customs and
customary law principles.

31.5 The royal council (the Bakgomana) activates the process for the selection of
the mmasetšaba and a royal delegation would visit the Maake (Maupa) family,
taking with them an empty clay pot as a symbolic gestur e indicating that the
Sekgopo vessel is empty and that it must be filled by the Maake (Maupa) by
providing a tribal wife. Once this is accepted, the delegation returns and call
a pitšo (tribal meeting) at which the community at large must give their
approval to the marrying of a candle wife. Each family has to contribute cattle
towards the dowry.

31.6 The delegation then returns with the dowry to the Maake. They will return a
third ti me taking a traditional blanket, a grain basket and a winnowing basket.

31.7 Before the chosen candle wife leaves her parents’ abode, an animal would be
slaughtered to celebrate her upcoming new status. Upon her arrival at the
royal house at Sekgopo, all fi res are extinguished and all lights (candles) are
similarly switched off or e xtinguished. The chosen tribal wife will then with the

help of the makgomana, light a new fire at the mošate and once this fire is lit,
all other fires are lit from it. This is the origin of the popular term “candle wife”.

31.8 There are also other collectiv e assignments that are only put into action with
the marriage of a candle wife. It was submitted that t he last time these rituals
were performed was when a tribal wife was married for the late Mamakobe
from the Maake family.

[32] William submitted that t he relevant history of the Sekgopo, starting with Sephomolo,
the first Kgoši to be called Sekgopo was also fully set out in the founding papers, in
the record before this Court and confirmed by Prof van Vuuren in his main and
supplementary reports. Therefor e, it was submitted, that it was again only
necessary to repeat the most crucial aspects of this history:

32.1 The name Sekgopo comes from the first of the Sekgopo ancestors to be give n
this name, namely Sephomolo whose great grandfather Mohale lead the
Lovedu (Modjadji) from Mashonaland in Zimbabwe. Sephomolo broke away
from the Lovedu and formed a separate entity around 1800. The name
Sekgopo became the tribal name as well as that o f the royal family. Before
settling down at their present place of abode, Se phomolo and his community
relocated several times and during these travels Sephomolo developed close
ties with the Koni of Dikgale and their royal houses intermarried.
Sephomolo’ s candle wife was from the Maake (Maupa) family and from this
marriage his so n and successor Motsheudi was born.

32.2 Motsheudi also married his candle wife, Mamaphoko, from the Maake
(Maupa) family and from this marriage his successor Mamakobe was born in
approximately 1870. Motsheudi’s first born son, Kiletsa, born from another
wife of Mamakobe, led a rebellion against the heir, Mamakobe, who was
sheltered at Maake (Maupa). The rebellion was unsuccessful and Mamakobe
was installed as Kgoši. Mamakobe passe d away in 1922 before he had
married a candle wife who could bear him a succe ssor. After his death, his

son William Matsorane I took over the leadership position as a Regent. He
could not be installed as Kgoši since he was not born from a candle wife.

32.3 Following the rituals explained above, the Royal Council, with the approval of
the Community, selected a candle wife from the Maake (Maupa) family,
namely Ngate also known as Mmamasemola or Mmamaake. She gave birth
to four girls and one male, namely Mots heudi II who unfortunately died young
before he could ascend the throne. He would have been the heir of
Mamakobe had he not died in infancy. As a result of his passing away, a
supplementary wife was married from the Maake (Maupa) family, namely
Mapitso M argaret Maake. She gave birth to William and according to
Sekgopo customary law, he is regarded as the successor of Mamakobe.

32.4 It was submitted by William that i n the meantime, the Regent, Matsorane 1,
was committed to a sentence of imprisonment for a cr iminal offence against a
man accused of witchcraft, which disqualified him fr om the position as acting
traditional leader. The Sekgopo Royal Council requested his son, Piet
Motshotsho to act on his behalf, a decision which was supported by the
Government at the time since Piet Motshotsho was a favorite of the apartheid
Government for showing his support for the establishment of a tribal authority.

32.5 Piet Motshotsho was born from the marriage between Matsorane I and his
wife from the Mailula family. He i n turn married the second respondent,
Josephine, who is also from the Mailula family. As she admitted during her
evidence before the Kgatla Commission, and as is also confirmed by Prof.
Van Vuuren in his report and supporting affidavit, the Mailula’s are not royals
and for that reason the Sekgopo candle wife cannot be married fro m this
family.

32.6 It was submitted by William that Josephine’s claim that she was in fact Piet
Motshotsho’s candle wife, is not supported by customary law. Piet
Motshotsho himsel f, was born from a marriage of his father and a wife from

the Mailula family and he also therefore did not qualify to succeed Mamakobe
as Kgoši.

32.7 Piet Motshotsho passed away on 13 October 1990. On 2 March 1992 the
Cabinet of the Lebowa Government approved the appointment of Josephine
as acting Kgošigadi of the Sekgopo tribe “ on be half of her minor son K[…]
D[…] S[…]” who, according to the Cabinet, was the heir apparent by virtue of
the fact that his mother was allegedly Piet Motshotsho’s candle wife.

32.8 William submitted, and as confirmed by Prof. Van Vuuren in his supporting
affidavit and expert report, this mistake by the Lebowa Government was partly
based on two previous genealogies which were drawn up by State
ethnologists, namely a Mr. Verryne wh o drew up a genealogy in 1980 when
Piet Motshotsho was still the acting Kgoši , and a genealogy drawn up in 1991
by an ethnologist, Lombard, on whose genealogy the Lebowa Government
placed reliance. It was submitted that the late Piet Motshotsho’s
spokespe rsons ensured that the genealogists were not given the true facts.
Lombard a lso did not speak to the royal family. These genealogies also
incorrectly listed Mamakobe’s candle wife, Ngate / Mmamaake as the fourth
wife of Matsorane I, which she was not.

32.9 According to William the Revised Record and the founding papers show, that
he and the Sekgopo Royal Family objected to Josephine’s appointment from
the outset. It was reiterated that several magistrates who investigated the
matter, the then Commission on T raditional Authorities, the Ralushai
Commission and the anthropological servi ces in the Premier’s office in 2010,
all confirmed the correctness of the Sekgopo history and customs as set out
above, and came to the conclusion that William is the rightful hei r of the
Sekgopo Senior Traditional Leadership position.

[33] William’s claim was lodged with the old Commission on 20 June 2005. William
lodged further claim documents with the new Commission on 10 October 2012. The

Kgatla Commission’s public hearing o f this dispute was scheduled for 29 October
2015. Josephine attempted to del ay the hearing of the claim by the Kgatla
Commission . It was submitted that i n November 2015 for example, she relied on the
pending case under case number 560 / 2011 in which she sought orders that her
son Koma be declared the rightful heir to the leadersh ip position. That application
was opposed by the Premier of the Limpopo Province who was cited as first
respondent. The answering affidavit was deposed to by Namanetona Joel Sh ai on
behalf of the Premier. In that affidavit Mr. Shai, an ethnologist in the traditional
affairs section of the Department of Co -operative Governance, Human Settlement
and Traditional Affairs in the Limpopo Provincial Government, set out the correct
history of the Sekgopo, advised the Court that William is the rightful heir and that
Piet Motshotsho only acted as Kgoši since he did not qualify for the position. He
also pointed out that Piet Motshotsho and his father Matsorane I were born from
mothers wh o hail from the Mailula family who did not qualify to become candle
wives. It was submitted that t his affidavit supports William’s claim before the Kgatla
Commission. It was submitted that a fter the filing of this affidavit by the Premier,
Josephine’s application was either dismissed or abandoned.

THE KGATLA COMMISSION’S INVES TIGATION AND RECOMMENDATION AS PER
THE APPLICANT (WILLIAM) :-

[34] The public hearing and the evidence that was led by William and by Josephine
appear from the transcript as well a s the discussion in paragraph 47 of the
supplementary founding affidavit, Bun dle 2 at pages 161 to 167, which need not be
repeated herein, save for highlighting the following:

34.1 Jospehine ’s version of the Sekgopo customary law of succession, and in
particu lar the marrying of a mmakgoši (mother of the chief), allegedly from the
family of a paternal uncle, as a marriage transaction concluded by the royal
family, which also supplies the cattle used as dowry, was clearly not in
accordance with the Sekgopo custo mary law. Her spokesperson was also

very unclear on the rituals that were fo llowed when she married Piet
Motshotsho from the Mailula family.

34.2 The William ’s evidence correctly explained the procedure in selecting a
candle wife or mmasetšaba (mother of the n ation) who is married in a social
contract between the traditional community (tribe) and the royals from the
Maake (Maupa) family. The dowry, according to Sekgopo customary law is
provided by the Community and not by the royal family.

34.3 The Jospehine also c onfirmed that the Mailula family is not royals, but only
headmen. William confirmed that the Maake family on the other hand is a
royal family.

34.4 When questioned by the Commissioners on the candle wives of Sephomolo
and Motsheudi, it was clear that Josephine was unfamiliar with this part of the
Sekgopo history although she did confir m that Mamakobe’s mother was from
the Maake (Maupa) family and that she was named Mmaphoko Maake.
William contended that this was fatal to Josephine’s opposition to his claim. It
was submitted that t he Kgatla Commission also correctly held that she coul d
not explain how and why the family from which the candle wife is selected
thereafter changed from the Maake to the Mailula family in her version. She
also incorrectly testified that Ngate / Mmamasemola was the youngest wife of
Matsorane I, whereas she wa s the candle wife married for Mamakobe by the
tribe.

[35] The Kgatla Commission’s report, in detail discussed the evidence and as submitted
by William, correctly came to the conc lusion that he is indeed the rightful heir of
Mamakobe.

[36] It was submitted that i n Mamone v Commission 2015 3 BCLR 268 (CC) the
Constitutional Court stated in paragraph [79] of its judgment , with reference to the
CTLDC, that a “ level of deference is nec essary – and this is especially the case

where matters fall within the specia l expertise of a particular decision -making body.
We should, as this Court counselled in Bato Star , treat the decisions of
administrative bodies with “appropriate respect” and “g ive due weight to findings of
fact . . . made by those with special expertise and experience ”. (See Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004]
ZACC15; 2004 (4) SA 490 (CC) at para 48 .) The Constitutional C ourt also took into
account that the Commission had to investigate what the c ustomary law was at the
relevant time, that the Commission did so, and concluded in paragraph [87] by
stating:

“This Court may not neglect its duty to scrutinise the rationality of the Commission’s
decision. But, in doing so, it must be cognisant of the Commission’s special
expertise as well as the wealth and complexity of the factual evidence it considered
in its wide -ranging enquiry. The fairness of that process, where represe ntations
were solicited from interested parties, was not challenged .”

[37] It was submitted that in the present case the respondents did not challenge the
fairness of the Kgatla Commission’s proceedings and with the withdrawal of
Josephine’s own review app lication against the Kgatla Commission’s
recommendation, there is no longer a challenge to the Kgatla Commission’s
proceedings. (Josephine however only in 2024 instituted review proceedings against
the Kgatla Commission’s report – I will deal with this lat er herein under case number
2950/2024 ). William therefore submitted that the Premier also had a duty to pay
some deference to the findings and recommendations of the Kgatla Commission.
His reasons for rejecting those findings and recommendations have to b e scrutinised
against that background.

THE PREMIER’S DECISION ON REVIEW AS PE R THE APPLICANT: -

[38] The Premier did not approve the Kgatla Commission’s recommendation and made
the following handwritten note on 23 April 2018 when he took this decision:


“It is clearly stated in the report that all customary rituals were followed wh en
Mokgadi J Sekgopo was married. Her late husband’s mother also hailed from
the Mailula’s but she was not contested”.

[39] The Premier’s reasons in terms of Rule 53(1)(b) are bou nd into the Revised Record
at pages 218 to 221. In this document he stated that the stands by his reasons as
stated in the letter of 11 June 2018 to the applicant, which were then repeated as
follows:

“3.1 I have considered and satisfied my self that all customary rituals and
processes were followed by the Sekgopo Traditional Community when
marrying Kgošigadi Josephine Mokgadi Sekgopo. Josephine was
properly married as a candle wife.

3.2 It has been custom to the Sekgopo family that they marry their
cousins, the Mailula’s are also cousins to the Sekgopos. The seed
raiser sho uld also be from their cousins.

3.3 Josephine was identified and appointed by the Sekgopo Royal Family
to be the acting Senior Traditional Leader” (sic).

[40] It was submitted tha t these reasons illustrate the irrationality of the decision taken by
the Pre mier on 23 April 2018. It is also submitted that no reasonable person could
have taken such decision, giving these reasons, on the information that was before
the Premier when h e took the impugned decision. In this respect the following is
emphasized:

40.1 The handwritten reason given by the Premier in the report, does not appear
from the Kgatla Commission’s report at all. There is no statement in the
report that the customary ri tuals, let alone “ all customary rituals” were followed
when Josephine married Piet Motshotsho. There is similarly no statement in

the Record or in any of the evidence that this was not disputed. The Record
shows the opposite.

40.2 The Premier clearly ignore d the reasons given by the Kgatla Commission for
rejecting the second respond ent’s evidence and their cogent reasons for
accept ing the applicant’s evidence.

40.3 As to the second reason given by the Premier in his reasons in terms of Rule
53, namely that it h as been the custom of the Sekgopo family to marry their
cousins and that the Mailula’s are “ also cousins to the Sekgopos”, there is no
historical evidence that the previous Magoši of the Sekgopo, namely Koma,
Sephomolo, Motsheudi and Mamakobe married a Mai lula wife as a candle
wife. It was in fact common cause that Mamakobe’s moth er, who was the
candle wife of his father Motsheudi, was a Maake and not from the Mailula
family.

40.4 Prof. van Vuuren also pointed out in paragraph 7.2 of his expert report and in
his confirmatory affidavit that the second reason, namely that the seed -raise r
should be from the Mailula, is preposterous as this would exclude any
Sekgopo royal blood in the future Sekgopo heir to the throne. Prof. Van
Vuuren put it as strongly as to sa y that this statement is ludicrous and against
customary law, not only of the Sekgopo but as well as that of other African
royal houses in the rest of South Africa.

[41] It was submitted that the Premier’s decision not to approve the Kgatla Commission’s
recommendation directly contradicts his predecessor’s decision in 2010 that William
should be recognised as Senior T raditional Leader of the Sekgopo and that
Josephine should be removed from her position. The Premier was, it is submitted,
functus officio in that he is bound by the decision of his predecessor. His impugned
decision therefore also fails the legality test. As was confirmed by the SCA in
Minister of Home Affairs and others v Scalabrini Centre, Cape Town and others
[2013] 4 All SA 571 (SCA) at par 61:


"It is by now axiomatic that the exercise of all public power must co mply with the
Constitution, which is the supreme law, and the doctrine of legality, which is part
of the rule of law " relying on Ngcobo CJ in Albutt v Centre for the Study of
Violence and Reconciliation and others 2010 (3) SA 293 (CC) par [49].

THE APPLICA NT’S (WILLIAM’S) GROUNDS OF REVIEW:

[42] William relies on the following grounds for review:

42.1 Section 6(2)(e)(iii) of PAJA in that relevant considerations and the evidence
before him were not considered, instead relying on irrelevant reasons which
vitiate d the decision;

42.2 Section 6(2)(e)(iv) of PAJA in that the decision was arbitrarily or capriciously
taken, having regard to all the facts of this matter.

42.3 Section 6(2)(f)(ii)(cc) and (dd) of PAJA in that it was not rationally connected
to the information b efore the Premier or the reasons given by him for this
decision. In Mamon e supra, it was held that the review threshold is
rationality. The Court continues as follows: “ The tes t is an objective one and
the reviewing court asks if there is a rational obj ective basis justifying the
connection made by the administrative decision -maker between the material
made available and the conclusion arrived at . Administrative action that fail s
to pass this threshold is inconsistent with the requirements of the Constit ution
and is unlawful. It matters not that the decision -maker acted in the belief, in
good faith, that the administrative action was rational ” (Applicant’s emphasis).
It is subm itted that the Premier’s decision failed the rationality test.

42.4 Section 6(2)(h ) of PAJA in that the way in which he exercised his powers and
performed his functions under the Framework Act and the Limpopo Act in
pursuance of which this decision was taken, w as so unreasonable that no

reasonable person could have so exercised the powe r or performed the
function. As stated above, no reasonable person could have taken this
decision with the information that was before the Premier. He should have
conceded William’s claim and should have approved the recommendation of
the Kgatla Commissi on.

[43] It was further submitted that r ejecting the recommendation of the Kgatla
Commission, which re -confirmed the standing decision of the previous Premier, is
also reviewab le under section 6(2)(a)(i), section 6(2)(d), section 6(2)(f)(i) and 6(2)(i)
of PAJA in that the Premier was not authorised by the empowering provision in the
Limpopo Act to overrule his predecessor, and thinking that he may do so, was
materially influence d by an error of law, contravened the well -known legal principle
that an admi nistrative action remains binding until such time as it is set aside by a
Court of law and, in thinking that he may overrule the previous decision in this
manner, this rendered h is decision unconstitutional and unlawful.

SUBMISSIONS BY APPLICANT ON THE ORDERS SOUGHT: -

[44] Section 8 of PAJA provides that a Court may in proceedings for judicial review in
terms of section 6(1) of PAJA grant any order that is just and equitable, in cluding
orders:

“(a) directing the administrator -

(i) to give reasons; or

(ii) to act in the manner the court or tribunal requires;

(b) prohibiting the administrator from acting in a particular manner;

(c) setting aside the administrative action and -


(i) remit ting the matter for reconsideration by the administrator, with
or without dir ections; or

(ii) in exceptional cases -

(aa) substituting or varying the administrative action or
correcting a defect resulting from the administrative
action; or

(bb) directing th e administrator or any ot her party to the
proceedings to pay compensation;

(d) declaring the rights of the parties in respect of any matter to which the
administrative action relates;

(e) granting a temporary interdict or other temporary relief; or

(f) as to costs. ” (See Allpay Consolidated Investment Holdings (Pty) Ltd
and Others v Chief Executive Officer, South African Social Security
Agency and Others 2014 (1) SA 604 (CC) .)

[45] Since the issuing of the present review application, the Framework Act has b een
repealed and replaced by the Traditional and Koi -San Leadership Act, 3 of 2019.

[46] It was submitted that t his Court, when considering appropria te relief in this
application, therefore has to consider the provisions of section 8 of PAJA, which
sectio n sets out the orders that a Court may grant in an application for judicial
review, read with the provisions of the Leadership Act of 2019 and, to the extent that
the Limpopo Act can be reconciled with the provisions of Act 3 of 2019, also with the
provisi ons of the Limpopo Act.


[47] It was further submitted that t he Notice of Mo tion in the present review application
was therefore amended in accordance with the provisions of Rule 53(4) of the
Uniform Rules of Court to take into account the changed legisla tive scheme.

[48] It was submitted that in respect of Prayer 1 - The first order that the applicant seeks
is to review and set aside the decision by the Premier not to approve the
recommendation by the Kgatla Commission, namely that his claim for the res toration
of the Sekgopo Senior Traditional Leadership to the rightful lineage of Mamakobe be
granted. As contended above, the Premier should have approved the
recommendation.

[49] In respect of Prayer 2 , that i n terms of section 8(1) of PAJA this Court m ay grant any
order that is just and equitable and that in terms of section 8( 1)(c) this Court may set
aside the administrative action (in this case the decision of the Premier not to
approve the recommendation) and (i) remit the matter for reconsideration to the
Premier or, (ii) in exceptional cases substitute or vary the administr ative action or
correcting a defect resulting from it.

[50] It was submitted by William that in this matter it would serve no purpose to remit the
matter back to the Premier for r econsideration. The decision that he had to take was
clearly to accept the Kg atla Commission’s recommendation and to act upon it. With
the withdrawal of the Premier’s opposition to the review application, it is reasonable
to assume that he has realized his mistake. It was further submitted that r eferring the
matter back to him woul d only waste further time when the outcome of the decision
is inevitable. It would also cause further unjustifiable prejudice to William and the
Sekgopo Traditional Community. It was submitted that William therefore seeks an
order replacing the decision of the Premier with a decision to approve the
recommendation of the Kgatla Commission.

[51] It was submitted in respect of Prayer 3 that in view of all the evidence and in view of
the deep division within the royal family between the broader representative r oyal
family and the supporters of the current acting traditional leader ( Josephine ) who

effectively are in charge, that this is a matter where it is just and equitable for this
Court to declare the rights of the parties in respect of the dispute which serv ed
before the Kgatla Commission, as is specifically provided for in section 8(1)(d) of
PAJA.

[52] For this reason, it was submitted that William is entitled, as prayer 3 of the amended
Notice of Motion provides for, for the following declaratory orders:

52.1 That it is declared that the second respondent (Josephine) does not qualify to
be the candle wife / mmasetšaba of the late Piet Motshotsho Sekgopo;

52.2 That according to the Sekgopo customary law the candle wife / mmasetšaba
of the Sekgopo Traditional Commun ity is married from the Maake/Maupa
families;

52.3 That the senior traditional leadership of the Sekgopo Traditional Community
should be restored to the rightful lineage of the late Ma makobe Sekgopo who
passed away in 1922, more in particular to a successor bor n from the said
Mamakobe Sekgopo’s candle wife / mmasetšaba or her surrogate from the
Maake family;

52.4 That the applicant, William Matsorang Sekgopo II, is the rightful heir to the
position of senior traditional leader of the Sekgopo Traditional Community.

[53] In respect of Prayer 4 it was submitted that Section 15(4) of the Limpopo Act states
that the Premier must upon request by the royal family remove any person appointed
in an ac ting capacity. The Sekgopo Royal Family has already taken such resolution
on 7 April 2010 and has already identified William in terms of section 12(1) of the
Limpopo Act as the person to be recognised as senior traditional leader of the
Sekgopo Traditiona l Community. As appears from the facts above, the Premier ’s
predecessor, Prem ier Mathale, had already taken such decision on 7 September
2010. William therefore seeks an order enforcing this decision and therefore seeks

an order against the Premier that h e should forthwith remove Josephine as acting
Senior Traditional Leader of th e Sekgopo Traditional Community in terms of the
provisions of section 15(4) of the Limpopo Act.

[54] It was submitted in respect of Prayer 5 that t he Sekgopo Royal Family has alr eady
identified William as rightful successor on several occasions, including in its
resolution dated 7 April 2010, as the rightful person to be recognised as senior
traditional leader for the Sekgopo Traditional Community, which accords with the
findings and recommendations of the Ralushai Commission and again of the Kgatla
Commis sion that he is the rightful person to be recognised as such. The Premier has
already complied with the provisions of section 30(1) of the Limpopo Act by seeking
the advice on imp lementation from the Limpopo Provincial House of Traditional
Leaders and does not have to do so again. It was submitted that William therefor
seeks an order that the Premier be compelled to recognize him as senior traditional
leader of the Sekgopo Traditi onal Community within one month after date of this
order and in terms of sect ion 8(3)(a), (b) and (c) of the Traditional and Koi -San
Leadership Act, 3 of 2019, read with section 12(1)(b) of the Limpopo Traditional
Leadership and Institutions Act, 6 of 2005 be ordered to:

54.1 publish a notice in the Limpopo Provincial Gazette recogniz ing William as
senior traditional leader of the Sekgopo Traditional Community;

54.2 issue a certificate of recognition to William as senior traditional leader of the
Sekgopo Traditiona l Community;

54.3 inform the Provincial House of Traditional Leaders of William’s recognition as
senior traditional leader.

[55] Prayer 6 relates to costs . It was submitted that William is entitled to the costs of this
application to be paid by the first to t hird respondents. Although the withdrawal of
their opposition to the applicat ion by the first and third respondents is appreciated,
the Premier should have self -reviewed his own decision when he realized that he

made a mistake. It is submitted that the app licant is also for another reason entitled
to a costs order against the first and third respondents. As stated by the
Constitutional Court in Mphephu -Ramabulana and Another v Mphephu and Others
(Ravhura Royal Kingship Council and another as intervening par ties) 2022 (1) BCLR
20 (CC), the review and exercise of public power by court s always raise a
constitutional issue. Applying the Biowatch principle, the Constitutional Court
ordered the President to pay Ms Mphephu’s costs in the SCA and the Constitutional
court.

[56] As to Josephine , it is submitted that her two answering affidavi ts disclosed no
defence to the relief sought by William herein.

THE 2nd AND 10th RESPONDENT’S SUBMISSIONS: -

[57] It was submitted that t he Kgatla Commission was established to p robe and
determine the validity of the claim by William , that the current rul ing lineage of
Matsorang Sekgopo I is not the legitimate one and that he is the rightful heir to the
throne and as such should be appointed as the Senior Traditional Leaders of th e
Sekgopo Traditional Community.

[58] Josephine in this matter was the resp ondent before the Kgatla Commission. The
Kgatla Commission concluded its work on 17 December 2017 and handed over its
report to the 5th Respondent for approval. The Premier did no t approve the Kgatla
Commission’s findings.

[59] It was submitted that Willi am challenge s the Premier’s refusal and failure to approve
and implement the Kgatla Commission’s Report. Josephine and the 10th
Respondents on the other hand in a separate court application, challenge the Kgatla
Commission’s jurisdiction to investigate th e Sekgopo Traditional Leadership dispute,
on the basis that the mandate of the Commission on traditional dispute and claims,
is all claims commencing on 1 September 1927. The disp ute relating to the Senior
Traditional Leadership of Sekgopo Traditional Comm unity would have arisen before

1927, when Kgoshi Mamakobe Sekgopo died in 1922 and his son Matsoroane
Sekgopo I was appointed in 1923.

THE 2nd AND 10th RESPONDENT’S SUBMISSIONS A D THE ESTABLISHMENT OF THE
SEKGOPO TRADITIONAL COMMUNITY :-

[60] It was subm itted that t he Mohale or Sekgopo is an off shoot of the Bakwebo or
Vhakwevho who are commonly known as the rain Queen Modjadji’s tribe. The off -
shoot tribe was founded by Kgoshi K oma Mohale or Sekgop o I, who was one of the
sons of Phetole, the son of Mohal e, who is said to have brought the Bakwebo tribe to
the rain Queen Modjadji’s country. After Phetole’s death a dispute arose
between his sons as to who should succeed as Kgoshi (“ the Senior Traditional
Leader”) with the result that Sekgopo I or Koma and Nt ahene, the progenitor
of the present Kgoshi Mamaila tribe, left with their respective adherents and set
up their own settlements.

[61] Whilst Kgoshi Koma Mohale or Sekgopo, Seep e, Monyethabeng left the rain
Queen Modjadji’s country on or around the 1810’ s with his followers and settled
around Sekhukhune at a place known as Maroteng. During the death of Kgoshi
Koma at Maroteng, Kgoshi Sephumolo Mohale or Sekgopo and his followers
left Maroteng in the Sekhukhune country and returned to the rain Queen Modjad ji’s
country and eventually settled at their current place which is known
as the Sekgopo’s location which is constituted by the following farms;
Jakhalsdraai No. 49, Zwagershoek N o. 50 and Koppie Alleen No. 51 having an
area of approximately 2, 900 morgens of which a large portion of the farms is
unusable, because is very steep and stony.

THE 2nd AND 10th RESPONDENT’S SUBMISSIONS AD THE RULERS OR MAGOSI OF
THE SEKGOPO TRADITIONAL C OMMUNITY: -

[62] According to Josephine and the 10th Respondent, t he founder Kgoshi Koma Mohale
or Sekgopo was succeeded by his heir and successor Kgoshi Sephomolo. Kgoshi

Sephomolo was succeeded by his heir and successor Kgoshi Mocheudi. Kgoshi
Mocheudi was succeeded by his heir and successor Kgoshi Mamakobe, (Kgoshi
Mamakobe was interviewed by the Native Location Commission on or around 5 April
1907 with regards to the allocation of land to be demarcated and registered as the
‘Sekgopo Location’).

[63] It was further submitted that Kgoshi Mamakobe was succeeded by his heir and
successor Kgoshi Matsorang. Kgoshi Matsorang was succeeded by his heir and
successor Kgoshi Motshotsho. Kgoshi Motshotsho was succeeded by his Mma -
setshaba (“the Candle Wife”) Mok gadi Josephine Sekgopo, who act on behalf of the
rightful heir and successor Kgoshi K[…] D[…] S[…].

[64] It was submitted that i t is apparent that the genealogical tree and t he succession
lineage was never disturbed from the founder Kgoshi Koma to his descendants
Kgoshi Motshotsho albeit that during the reign of Kgoshi Mama kobe a dispute on the
chieftaincy was declared on or around 9 October 1906 by his brother who was
known as Ngoako who was the rightful heir and successor to Kgoshi Mocheudi, who
also had his own followers, the disputes was resolved on the grounds that Ngoa ko
was dethroned of his chieftaincy because he refused to follow the customs and
traditions of marrying his cousin as a Mma -setshaba (“the Candle Wife”), and as a
result Kgoshi Ma makobe remained as Kgoshi (“the Senior Traditional Leader”) of the
Sekgopo tr aditional community.

THE 2nd AND 10th RESPONDENTS’ SUBMISSIONS AD THE MARRIAGE SYSTEM OF
SEKGOPO

[65] It was submitted that t he marriage systems of the Sekgopo dates as far bac k as
1810, where the founder Kgoshi Koma Sekgopo of the Sekgopo traditional
community informed his royal family members that they will only marry their aunt
daughters (“the Cousin’s”) in order to preserve the bloodline. This message has
been passed from on e generation to the other hence the custom is still been
practised within the Sekgopo ruling lineage to this day. Indeed, the founder Kgoshi

Koma got married to Mma -setshaba (“the Candle Wife”) Molatelo Shobana who was
the eldest daughter of his aunt who m arried Mr Shobana.

[66] It was further submitted that h is heir and successo r Kgoshi (“the Senior Traditional
Leader”) Sephomolo also got married to his cousin Mma -setsha ba (“the Candle
Wife”) Khwinana who was also from the Shobana’s family. Kgoshi Sephom olo was
succeeded by his heir and successor Kgoshi Mocheudi. K goshi Mocheudi also got
married to his cousin as his Mma -setshaba (“the Candle Wife”) Khwinana, who was
also from the Shobana family. During the reign of Kgoshi Mocheudi, the
Shobana family only had the last daughter Khwinana and the rest were males
and as a result he ad vised that, ‘they should now marry from the Mailula
family because the youngest aunt from the Sekgopo royal family married Mr
Mailula.

[67] It was further submitted that h is rightful heir and successor to the throne, Ngoako
and his brother Kiletsha refu sed to follow the system and as a result he dethroned
them of the chieftaincy and gave it to Maphoko Maake’s son Mamakobe who agreed
to get married to his cousin from the Mailula family. According to Josephine, t he
system has been practised for two hundred and thirteen (213) years and it has not
been altered to date.

THE 2nd AND 10th RESPONDENTS’ SUBMISSIONS AD MAAKE MAUPA: -

[68] Josephine submitted that the marriage of Maphoko Maake of the Maupa family was
not arranged. Maphoko was an ordinary wife of K goshi Mocheudi since he had a
Mma -Setshaba (“the Candle wife”) Khwinana Shobana who was his cousin who had
the following issues; Ngoako (m) and Kiletsha (m). In terms of the Sekgo po customs
Mma -setshaba Khwinana Shobana was a Mma -setshaba (“the Candle Wife ”) who
bear an heir and successor to the chieftaincy wherein Ngoako should have
succeeded his father as Kgoshi (“the Senior Traditional Leader”) albeit that he was
dethroned on th e grounds that he refused to follow the marriage system hence

Kgoshi Mocheudi took the chieftaincy to Maphoko Maake’s son Mamakobe who
agreed to follow the marriage system to the latter by getting married to his cousin.

[69] Ngate was married as a Mma -setshaba (“the Candle Wife”) to Kgoshi Matsorang
William Sekgopo since he was a lready married to Mma -setshaba Motshidi Mailula
who had the following issues; Malahlane (f), Mohale (m) predeceased, Mochocho
(m) and Molatelo(f).

[70] The marriage of Mamolatel o Mapijo Maake of Maupa family by Ngate who was
also from the Maupa family, t he 3rd wife of Kgoshi Matsorang William
Sekgopo was something unheard of and/or foreign within the Sekgopo royal
family since Ngate had the following issues; Maupi (f), Mahlogo (f ), Malehu (f),
Dipitsi (f) and Mocheudi (m).

[71] It was f urthermore submi tted, on the grounds that Mamo latelo Mapijo Maake/Sekgopo
was selected and married by Ngate the 3rd (third) wife of Kgoshi Matsorang William
Sekgopo, instead of the Sekgopo royal family, such a marriage is invalid in
terms of the customary law hence they c ould not select a selepe (“the most
senior councillor from the Sekgopo royal family”) whom she would consort with
and bear children.

THE 2nd AND 10th RESPONDENTS’ SUBMISSIONS AD SELECTION OF AN HEIR: -

[72] It was submitted that a selection and an appoin tment of a Kgoshi (“the S enior
Traditional Leader”) is done by members of the ‘Royal Family’ and n ow that it has
been established why Mr Matsorang William Sekgopo (“the Clai mant”) or his
descendants could not qualify to ascend or inherit the Sekgopo tradit ional leadership
or chief taincy and the Sekgopo traditional community.

[73] It was further submitted by Josephine that, a ccording to Balobedu customary law,
traditional leadersh ip or chieftaincy is a sacrilegious position that ought to be
regarded in hig h rankings. A Kgoshi (“the Senior Traditional Leader”) is not elected

into office by a popular vote like politicians, but determined through the correct ruling
lineage within the royal family.

[74] Josephine submitted that t he Balobedu customary law of succession, just like many
various people in the Republic of South Africa (“RSA”), practise the patrilineal
system of inheritance. Succession to any traditional leadership or chie ftaincy
position follows the patrilineal descent line, in which both males an d females belong
to their father’s kin group but not their mother’s. When it comes to issues pertaining
to succession, the Balobedu people place a high premium on the patrilineal descent
group.

[75] It was further submitted that t he issue of being a ‘tr ue blooded royal’ or not is
important amongst the Balobedu to such an extent that society keeps an eagle eye
on women married to royals. In other words, women who are married to r oyals
should not be found having extra marital relations with none royals, ot herwise
children born to such women and out of that relationship would be tagged as being
none -royals and will not be eligible for inheritance within the royal family.

[76] The most important eligibility criterion to become a Kgoshi (“the Senior Traditio nal
Leader”) of any kin is to be 1st of all, to be a true blooded royal. Thus, any person
said to be a none -royal vying for any title is fiercely resisted by the royal family and
most importantly, by the society as well.

[77] In terms of the customary la w and the Balobedu cultural practises, a Kgoshi
(“the Senior Traditional Leader”) is selected and appointed by the royal family
from the great house of Mma -setshaba only, and Kgos hi Mochocho Piet
Sekgopo was duly selected and appointed and there was no dis pute
whatsoever until his death on or around 19 October 1990. The dispute only
occurred on 23 June 2005, from Mr Matsorang William Sekgopo who is not
even a direct descendant of K goshi Matsorang William Sekgopo but a nephew
to his ordinary 3rd (third) wife , Ngate Maake became a mother in law of
Mamolatelo Mapijo Maake (“the Claimant Mother”).


[78] By virtue of Mr Matsorang William Sekgopo (“the Claimant”) being a nephew to
Ngate Maake of the Maupa family the 3rd (third) wife of Kgoshi Matsorang William
Sekgopo, automatically disqualifies him to submit a claim for the chieftaincy of the
Sekgopo ruling lineage.

THE 2nd AND 10th RESPONDENTS’ SUBMISSIONS AD A DISPUTE OF FACTS: -

[79] The 2nd Respondent (Josephine) submit that from the reading of the papers b efore
court, it is apparent that there is different versions relating to the following -

79.1 Customary practice of marriage of mmasechaba;

79.2 Customary practice of the house from whe nce m masechaba must come
from?(W hether it is the Maake Maupa or Shobana or Mailula families)

79.3 Whether the Maake - Maupa are Balobedu or B akgaga ;

79.4 Whether the K goshi of Sekgopo, Mocheudi and royal family shifted and
diverted bogoshi from Ngoako’s lineage or not? If yes, whether such diversion
to Mmamakobe by default elevated Mmakobe’s mothe r to be mmasechaba?

79.5 Whether Mamakobe had married a mmasechaba or not? Whether such
mmasechaba had any issue or raised an heir?

79.6 Whether Matsoroane Sekgopo I married Ngate Masemola as mmasechaba or
not? Whether Matsoroane Sekgopo I married Ngate Masemola as a
masechaba for his late father Kgoshi Mamakobe?

79.7 Whether Mamasemola Ngate had children or not? Whether when Ngate
married the William ’s mother, was she married as a surrogate? Who in the

Royal family and where is the resolution evidencing the decision to m arrying a
tlhatswadirope for Mamasemola Ngate.

79.8 Whether, Kgoshi Mamakobe is the last undisputed chief of the Sekgopo
traditional community?

79.9 Whether, Kgoshi Matsoroane Sekgopo I was a regent or acting Kgoshi?

79.10 Whether, Kgoshi Piet Mochocho was a regent or act ing Kgoshi?

79.11 Who constitute the Royal Family of Sekgopo to make a decision to appoint
Kgoshi? Was this body properly constituted when Kgoshi Matsoroane
Sekgopo I and subsequently K goshi Piet Mochocho and subsequently the 2nd
Respondent to act for K[…] D[…] S[…]?

79.12 Is there a decision of a properly constituted meeting of the Royal Family of
Sekgopo Traditional Community, appointing the Applicant, Matsoroane
William Sekgopo II?

[80] Josephine further submit ted that the above issues and questions are ans wered
differently by William . It was submitted that Josephine also places before court a
different version . According to her this raises a genuine dispute of facts relating to the
bogo shi ba ga Sekgopo, and t his makes it incompetent for the court to grant the
declaratory orders in paragraph 3 of the Amended Notice of Motion.

[81] In the result, it was submitted that the matter should be referred to trial as it involves
serious cu stomary issues and has an impact of creating social instability within the
Sekgopo Traditional Community if each of the parties is not afforded an opportunity to
have his day in court to ventilate the issues.


[82] It was submitted that i n such an instanc e, the court ought to consider the well know
Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd [1957] (4) SA 234
(C) where the court held that:

“where there is a dispute as to the facts, a final interdict should be granted in
motion proceedin gs only if the facts as stated by the respondents, together with
the admitted facts in the applicant’s affidavit, justify such an order, or where it is
clear that the facts, although not formally admitted, cannot be denied and must
be regarded as admitted. ”

[83] It was submitted that t his principle was clarified with approval by th e Appellate
Division as it then was in Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] (3) SA 623 (A), the Appellate Division (now known as the Supreme Court of
Appeal) found per CORBETT JA, that the rule formulated in Stellenbosch Farmers’
Winery required clarification and qualification where final relief was sought in motion
proceedings.

83.1 The general rule is still that in proceedings where disputes of fact have ari sen
on affidavits, a final order , whether an interdict or some other form of relief,
may be granted if the facts averred in the applicant’s affidavits, which have
been admitted by the respondent, together with the facts alleged by the
respondent, justify s uch an order.

83.2 The power of the court to give such final relief on the papers before it is,
however, not confined to such a situation.

83.3 In certain cases denial by a respondent of a fact alleged by an applicant may
not raise a real, genuine or bona fide dispu te of fact . If the respondent in such
a case has failed to apply for the depo nent(s) concerned to be called for
cross -examination under Rule 6(5)(g) of the Uniform Rules of Court, and if the
court is satisfied as to the inherent credibility of the applican t’s averments, the

court may decide the disputed fact in the applicant’s favo ur, without hearing
oral evidence. (2nd and 10th Respondent’s emphasis)

THE 2nd AND 10th RESPONDENTS’ SUBMISSIONS ON REMITTAL OR SUBSTITUTION
OF DECISION

[84] Josephine and the 1 0th Respondent submitted that t he remaining question is what
the court should do with the decision of the Premier once set aside. Josephine and
the 10th Respondent submit ted that the Premier’s decision if remitted back would
require the Premier to implemen t a decision of the Kgatla Commission which is a
subject of review and contes tation. On the other hand the Kgatla Commission’s term
of office has expired. Josephine and the 10th Respondent submit ted that it would be
near impossible to refer the matter back to the Kgatla Commission for a decision,
lest the court direct that the Prem ier reconstitute the Committee once more.

[85] It was submitted by Josephine and the 10th Respondent that this is a case in which
the 5th to 9th Respondents’ conduct is not only marred with malice, but also gross
dereliction of duties and abdication of d uties to officials.

[86] It was submitted that Plasket J cautioned in Intertrade Two (Pty) Ltd v MEC for
Roads and Public Works Eastern Cape and Another (1790/04) [2007] ZAECHC 149,
and Section 8(1) of the PAJA makes clear, overzealous judicial intervent ion is not
the panacea for all cases of administrative breakdown:

“[C]ourts, when considering the validity of administrative action, must be wary of
intruding, even with the bes t of motives, without justification into the terrain that
is reserved for the administrative branch of government. These restraints on the
powers of t he courts are universal in democratic societies such as ours and
necessarily mean that there are limits o n the powers of the courts to repair
damage that has been caused by a breakdo wn in the administrative process.”


[87] It was submitted further that i t is a generally accepted principle of our common law
that a court will be reluctant to assume decision -making power for itself where the
discretion has been entrusted to another func tionary.

[88] It was submitted that i n Erf One Six Seven Orchards CC v Greater Johannesburg
Municipal Council 1999 (1) SA 104 (SCA), the Court held that: -

“When setting aside suc h a decision, a Court of law will be governed by certain
principles in decidi ng whether to refer the matter back or substitute its own decision
for that of the administrative organ …
The general principle is therefore that the matter will be sent back unle ss there are
special circumstances giving reason for not doing so. Thus, for example, a matter
would not be referred back where the tribunal or functionary has exhibited bias or
gross incompetence or when the outcome appears to be forgone.”

[89] The 2nd and 10th Respondent submit that in this case, the 5th to 9th Respondent,
condu ct in the hearing of the Sekgopo dispute was bias. (In my view this speaks to
the issue under case number 2950/2024 and not the present matter.) It was arbitrary
and capricious. T he 5th to 9th Respondents abdicated their responsibility and handed
the inves tigation and research of the matter to the 3rd Respondent’s officials who
demonstrated gross incompetence as they failed to find available documentary
records from the archives an d the libraries.

[90] Josephine and the 10th Respondent referred to Gauteng Gambling Board v
Silverstar Development Limited & Others 2005 (4) SA 67 (SCA) . In that case, the
Supreme Court of Appeal confirmed t he legal principles as follows: -

“The legal pr inciples

[28] The power of a court on review to substitute or vary administ rative
action or correct a defect arising from such action depends upon a determination
that a case is 'exceptional': s 8(1)(c)(ii)(aa) of the Promotion of Administrative

Justice Act 3 of 2000. Since the normal rule of common law is that an
administrative organ on which a power is conferred is the appropriate entity to
exercise that power, a case is exceptional when, upon a proper consideration of
all the relevant facts, a court is persuaded that a decision to exercise a power
should not be left to the desi gnated functionary. How that conclusion is to be
reached is not statutorily ordained and will depend on established principles
informed by the constitutional imperative that admin istrative action must be lawful,
reasonable and procedurally fair. Hefer AP s aid in Commissioner, Competition
Commission v General Council of the Bar of South Africa and Others 2002 (6) SA
606 (SCA):

'[14] . . . (T)he remark in Johannesburg City Council v Administrator, Transvaal, and
Another 1969 (2) SA 72 (T) at 76D - E that '' the Court is slow to assume
a discretion which has by statute been entrusted to another tribunal or
functionary'' does not tell the whole story. For, in order to give full effect to
the right which everyone has to lawful, reasonable and procedurally fair
administrative action, considerations of fairness also enter the picture.
There will accordingly be no remittal to the administrative authority in
cases where such a step will oper ate procedurally unfairly to both parties.
As Holmes AJA observed in Livestoc k and Meat Industries Control Board
v Garda 1961 (1) SA 342 (A) at 349G

''. . . the Court has a discretion, to be exercised judicially upon a consideration
of the facts of each c ase, and . . . although the matter will be sent back if
there is no reason fo r not doing so, in essence it is a question of fairness
to both sides''. [See also Erf One Six Seven Orchards CC v Greater
Johannesburg Metropolitan Council (Johannesburg Administ ration) and
Another 1999 (1) SA 104 (SCA) at 109F - G.]

[15] I do not accept a submission for the respondents to the effect that the
Court a quo was in as good a position as the Commission to grant or
refuse exemption and that, for this reason alone, the matter was rightly

not remitted. Admittedly Baxter Administrative Law at 682 - 4 lists a case
where the Court is in as good a position to make the decision as the
administrator among those in which it will be justified in correcting the
decision by substit uting its own. However, the author also says at 684:

''The mere fact that a court considers itself as qualified to take the decision as
the administrator does not of itself justify usurping that administrator's
powers . . .; sometimes, however, fairness t o the applicant may demand
that the Court should take such a view.''

This, i n my view, states the position accurately. All that can be said is that
considerations of fairness may in a given case require the court to make
the decision itself provided it is able to do so.'”

[91] Josephine and the 10th Respondent submit ted that the sentiments in the above
quoted judgement are apposite, sometimes, however, fairness to the applicant may
demand that the Court should take such a view. Further, that consideration s of
fairness may in a given case require the court to make the decision itse lf provided it
is able to do so.

[92] Josephine and the 10th Respondent submit ted that this court is in as good a position
as the 5th to 9th Respondent to hear oral evidence, r eceive documentary evidence
and evaluate such to make a finding of fact.

[93] Josephine and the 10th Respondent submit ted that exceptional circumstances exist,
for the above honourable court to substitute the decision of the Respondents and
grant an orde r in the following terms -

“(1) To review and set aside the decision of the 5th to 9th Respondent;

(2) To refer the dispute over Senior Traditional Leadership of the Sekgopo
Traditional Community to trial;


(In my view, once again this has a bearing on C ase Number 2950/2024 and not really on
the present matter under Case Number 5 799/2018.)

THE 11th RESPONDENT’S SUBMISSIONS: -

[94] It was submitted that the 11th Respondent is the Royal Family as defined by the
provisions of the Traditional Khoi -San Leade rship Act 3 of 2019, read with the
applicable Limpopo Traditional Leadership and Institutions Act 6 of 2005. They are all
related to Josephine , who currently is appointed as the acting senior traditional
leader. (I pause here to state from the onset that there is a dispute as to who the core
Royal Family is. William has his fract ion of a Royal Family supporting him and the
11th Respondent is a fraction of the Royal Family supporting Josephine.The 11th
Respondent is the fraction of the Royal Family support ing Josephine.)

[95] It was submitted that William and his immediate family have been pursuing hi s claim
to be appointed as the Senior Traditional L eader of the community since 1990.

[96] It was submitted that initially, William and his group approached the Ralushai
Commission, which issued a report in favour of William in 1997. A copy of this report,
although incomplete, is in the record at pages 37 to 41. It was submitted that n o steps
were ever taken by William to have these recommendations finally i mplemented, and
they have never been implemented as a result.

[97] Accordin g to the 11th Respondent, the matter was thereafter referred by William to
the Nhlapo Commission on or around 23 June 2005. Who received and
acknowledged the claim. The Nhlapo C ommission however failed to deal with the
claim.

[98] William also utilised the provisions of section 15(4) of the Limpopo Traditional
Leadership and Institutions Act 6 of 2005 to request for Josephine’s removal and his
appointment, but this request was never processed by the Premier.


[99] According to the 11th Respondent, it is evident that it was considered by the then
Premier , and pages 59 to 74 appear to contain extracts of this process, but in the
end, no final decision was made before the matter was considered by the Kgatla
Commission, and no application was ever brought to have such a decision made.

[100] It was submitted that William then referred the matter to the Kgatla Commission,
who received and acknowledged the claim on the 25th of May 2 012.

[101] The Nhlapo Commission and the Kgatla Commission were enacted in a ccordance
with the Traditional Leadership and Governance Framework Act 41 of 2003. It must
be borne in mind, however, that their mandates were not identical.

[102] The Kgatla C ommission operated subsequent to amendments which were made to
the Traditiona l Leadership and Governance Framework Act 41 of 2003, which were
made in terms of Act 23 of 2009, which took effect from 25 January 2010.

[103] The Nhlapo Commission, which never dealt with this matter, made decisions on
traditional leadership disputes an d claims, whereas the Kgatla Commission was
tasked with doing investigations and making recommendations to the Premier.

[104] It was submitted that the Kgatla Commission made rec ommendations to the Premier
in a twelve -page report dated 4 December 2017. The recommendation of the Kgatla
Commission was that the claim of the Applicant (William) “for restoration of Sekgopo
Senior Traditional Leadership to the rightful lineage of Mamak obe” be granted.

[105] The premier, however, on the 23rd day of April 2018, did not approve this
recommendation, but instead rejected the recommendation and decided to reject the
claim of William , on the basis that Josephine’s late husband’s (the last app ointed
Kgoshi) mother was also from the Mailula family, and his lineage was n ot contested.
The Premier held to the belief that all rituals were followed when Josephine was
appointed in an acting capacity.


[106] It is this decision of the Premier that is u nder review in this matter. Subsequent to
this decision of the Premier, Jose phine has also taken the report of the Kgatla
Commission on review.

THE 11th RESPONDENT’S SUBMISSIONS ON THE FACTUAL DISPUTE :

[107] It was submitted that t he bundles in this m atter are voluminous, laden with report
and with factual material. The true factual and legal issue between the parties,
however, is simple and can be summarised within two pages.

[108] Essentially, the parties disagree on what the customs of the Sekgopo Community
were during the time that Matsorane William Sekgopo 1 was appointe d as senior
traditional leader of the Community, and how and by whom he was appointed to this
position.

[109] They also disagree on the capacity in which he was appointed, and w hether he was
appointed as the Senior Traditional Leader, or just an acting s enior traditional leader.

[110] A corollary to this dispute, is whether his mother, who hailed from the Maiula Family,
was a candle wife of the late chief Mamakobe or not.

[111] Accordingly, the dispute centres on the customs and events, and the customary law
of the Community as it was in 1922, which is 102 years ago now.

[112] The 11th Respondent submitted that it has given their exposition on what the
customs of the Community was at this time, and since then, it can be summarised
below:

112.1 The marriage syste ms of the Sekgopo date as far back as 1810.


112.2 The founder Kgoshi Koma Sekgopo of the Sekgopo Traditional Community
informed his Royal Family members that they will now only marry t heir aunt
daughters (the cousins) in order to preserve the Royal bloodline.

112.3 This message has been passed on from generation to generation since. The
Applicants and his entourage are far removed from the Royal Family and are
therefore not aware of its cus toms.

112.4 The founder Kgoshi Koma married a Mma -setshaba (the candle wife)
Molat elo Shobana who was the eldest daughter of his aunt who was married to
Shobana.

112.5 His heir and successor Kgoshi Sephomolo also got married to his cousin
Mma -Setshaba (the candle wi fe) Kwinana who was also from the Shobana
family.

112.6 In this regard, without do ing any investigation, the Commission seemed to
have assumed that the Maake’s were always the providers of candle wives to
the Royal Family, but the above information shows they w ere clearly
mistaken.

112.7 It was submitted by the 11th Respondent that they would have corrected them
if it were apparent that this was what they were trying to establish, but as the
Court would see from the 26 -page record, they appeared to be in a rush to
finalise the matter, and did no proper investigation.

112.8 It was submitted that Kgoshi Mocheudi succeeded Sephomolo and married
his cousin, also Kwinana, also from the Shobane family.

112.9 During the reign of Kgoshi Mocheudi, the Shobane family advised that the
Sekg opo should now marry from the Mailula family, as they do not have any

more da ughters and the youngest aunt from the Sekgopo Royal Family
married Mr. Mailula.

112.10 According to the 11th Responden t there was at this point an argument
between the rightful succes sor to the throne, Ngoako and his brother Kiletsha,
who refused to follow the system, and as a result, the chieftaincy was given to
Maphoko Maake’s son, Mamakobe, who agreed to get married to his cousin
from the Mailula family, as was initially agreed.

112.11 From this point on the Royal Family continued with the Mailula family for the
next 80 years. The Second Respondent was married as the candle wife of
Piet Motshotsho Sekgopo.

[113] It was submitted that William , on the other hand, contends that the Royal fa mily has
always married its candle wife from the family of Maake.

[114] Accor ding to the 11th Respondent, h is version, very shortly, can be summarised as
follows:

114.1 William agrees that Mamakobe passed away in 1922 but disagrees that he
married a candle wife . According to William , Mamakobe married no candle
wife.

114.2 After his death, William alleges that Mamasemola Ngate was married as a
candle wife after the death of Mamakobe, but she failed to bear an heir despite
having five children. The only boy that was b orne, however, died very young.
As a result, Mapitso Margaret Maake was marr ied as a candle wife, and she
gave birth to William on the 19th of March 1976 with the assistance of a seed
raiser.

114.3 It was submitted that, a ccordingly, on William’s version, it to ok the Royal
Family 54 years to marry a candle wife and birth an heir for Mam akobe.


114.4 The people who had been appointed in the meantime to rule over the
community, were not appointed as senior traditional leaders, but were rather
acting.

114.5 It was submitted that William therefore avers that Matsorane William Sekgopo
1 and Piet Motsho tsho Sekgopo were only acting as senior traditional leaders
and were not genuine senior traditional leaders.

114.6 It was submitted that William also denies Josephine is a candle wife, on the
hand due to the above dispute, but they also deny the necessary custo ms were
followed when Josephine was married, as they are of the view that the Royal
Family must always marry a candle wife from the Maake house or community.

[115] It was submitt ed by the 11th Respondent that c onsidering the above, the
Commission had to l ook into the question of who the rightful heir was of Mamakobe
Sekgopo, who died in 1922, was it Matsorane 1, who ruled shortly after Mamakobe’s
death until 1958, and subsequent t o him Piet Motshotsho, or was it William , who was
borne five decades after hi s passing .

[116] It was further submitted that i t is important to note that the dispute is one of lineage,
and the claim is a claim that was lodged by William . William must ther efore prove
that his lineage is the correct one.

[117] To do so, William had to prove who Mamakobe’s candle wife was, whether the
candle wife was correctly married in terms of the customs of the community, and
whether he was the son of that candle wife or her representative.

THE 11th RESPONDENT’S POINT OF DEPARTURE: -


[118] It was submitted that Josephine was recognised by the cabinet of the Lebowa
Government as the acting Kgosigadi on behalf of her minor son K […] D[…] S[…]
following investigation of the state ethnologist.

[119] Along with such recognition, she was given j urisdiction in terms of section 12(1)(a)
and 20(1)(a) of the Black Administration Act 38 of 1927 to try civil and criminal
cases.

[120] The tribal authority was formally declared on the 25th of November 1959 under chief
William Madzorane Sekgopo.

[121] It was submitted that Josephine was therefore recognised by way of administrative
action, and it appears her predecessors were as well.

[122] It was submitted that t he point of depa rture in this regard as per the common law, is
the presumption of regularity in terms of the maxim omnia praesumuntur rite esse
acta donec probetur in contrarium. (See Phillips v SA Reserve Bank and Others 2013
(6) SA 450 (SCA).)

[123] The 11th Respondent s ubmitted that the maxim states that, in the absence of
evidence to the contra ry, it will be assumed by a Court that all legal requirements
were complied with in the performance of official acts. (See Beyers v Chin 1928 AD
332)

[124] It was submitted that i n this instance, it must therefore be assumed that Josephine
was correctly ap pointed, until evidence to the contrary is provided.

[125] It was further submitted that t he mechanism that the legislature promulgated to allow
parties to investigate the correc tness of such administrative actions, was by allowing
them an opportunity to submit their claims to a provincial or national commission
established in terms of the Framework Act of 2003, and its subsequent
amendments.


[126] William submitted its claim to the Kgatla Commission, who was tasked with the
responsibility to investigate his claim and make recommendations to the Premier in
terms of section 26 of the Framework Act.

[127] It is the Premier who must decide on the recommendation, within 60 days of
receiving same.

[128] The commission must therefore investigate and state rea sons as to whether the past
administrative actions, recognising Josephine and her predecessors, must be
overturned, and William identified instead.

[129] It was submitted that i n this regard, it is important to consider the purpose of the
Committee’s actio ns, in relation to the decision of the Premier. As stated in the
matter of Premier of the Eastern Cape and others v Hebe and Others (2018) 1 All
SA 194 (ECB), “the purpose of th e actions of the Committee is the determination of
a claim or the resolution of a dispute, the outcome of which is likely to affect rights
and to have a direct external effect. Although the Premier is empowered to make a
decision that differs from the rec ommendation of the Committee, he or she is obliged
to act on the recommendati on. Section 26(3) of the Framework Act dictates that a
decision regarding the recommendation must be taken within 60. That decision is
informed and limited by the nature of the claim made or the dispute raised, and the
investigation and recommendation of the Committee. While the actions of the
Committee may be said to only have the “capacity to affect legal rights” during the
course of the investigation, they impact directly on the rights of a person where the
Premier, as in the present matter, decides t o accept the recommendation of the
committee. If the Committee’s role in the decision making process was flawed, the
entire process will be tainted. The recommendation and the d ecision, accordingly,
constitute administrative action within the meaning of PAJA.”

[130] It was further submitted that t he terms of reference of the Kgatla commission were
set out in section 25(2)(a)(i) -(x) of the Framework Act. Sections 2, 3, 4, 5 and 6 of

the Commissions Act apply, with the necessary changes, to the Kgatla Com mission
as per section 25(7) of the Framework Act.

[131] The 11th Respondent submitted that a s per the matter of President of the Republic of
South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC), the purpose
of making the Commissions Act applicable to a commission of inquiry assumes that
a commission can call witnesses and obtain the production of documents and
objects at pain of punishment. A Commission is an in vestigative body whose
responsibility is to report to the president (read Pre mier) on its findings.

[132] It was further submitted that t he purpose of a Commission generally, is to investigate
and find answers on certain questions or issues that were refe rred to it. The
Commission must gather evidence, take witnesses statements, and test the veracity
of such evidence through an inquisitorial investigation. A commission of inquiry is
not a Court of law, and there are no issues that need to be subjected to a hearing
before it. There is no Plaintiff and there is no Defendant in suc h proceedings.

[133] It was submitted that in the matter of Mahonisi Royal Family & 2 others v Premier of
the Limpopo Province & 6 others, heard under case number 1366/2017 , and
judgement granted on the 26th of May 2020, it was stated by Muller J that “a
commission of inquiry does not function as a court of law. It is a body tasked to
investigate facts in terms of an inquisitorial process and to apply customary law and
traditions of the relevant communities, at the time that the events occurred. There
are no adversaries as one would find or expect in a civil trial. In a civil trial disputes
are crisply defined by way of pleadings between predetermined parties. Put
differently, the commission must establish what the facts are and what the law was
and the n make a recommendation to the premier.”

[134] The 11th Respondent submitted that i t is therefore the case, that it was the task of
this Commission of inquiry, the Kgatla Commiss ion, to lodge an independent
investigation into the history of the matter, wi th a view of establishing the true or
most likely state of affairs in so far as it relates to the time when William’s alleged

claim to chieftaincy was lost. That is why the commi ssion, in principle, is compiled
out of individuals who are supposed to be ex perts in their field.

[135] It was submitted that i n order to do so, the Kgatla commission could at pain of
punishment call for the presence of witnesses, delve into the archive s, request the
production of documents, and perform any other information gat hering exercises
they may have felt necessary to investigate the matter properly.

[136] It is submitted, however, that when the report and the record is considered, they did
no such thing, instead viewing themselves as a Court of law which had to determi ne
and decide between the probability and credibility of two versions.

[137] The 11th Respondent further submitted that b ecause this report was so tainted and
insufficient, the Premier cannot be faulted for refusing to implement same. Indeed,
as the po int of departure is that the recognition of Josephine was done correctly,
there was no information before the Premier and offered by the Commission, as to
why her recognition shou ld be overturned.

THE 11th RESPONDENT’S SUBMISSIONS ON THE COMMISSION’S REP ORT AND THE
DECISION OF THE PREMIER: -

[138] It was submitted that t he investigative process followed by the Kgatla Commission is
apparent from the record of proceedings, as well as the report that they submitted to
the premier.

[139] It was submitted th at the Commission correctly summarised the issue for
investigation at page 197, namely that they must establish (1) the validity of the
Applicant’s claim (2) the circumstances tha t led to the derailment of the senior
traditional leadership position if the claim by Matsorang William is valid (3)
verification of the lineage to which the Applicant belongs and whether it is the
legitimate lineage and to (4) establish the relationship b etween the two lineages in
question and their statuses.


[140] Under methods o f investigation the Commission claims that they “analysed written
submissions”, conducted a public hearing and interviews, and a literature review.

[141] It was submitted that t he transcript of the public hearing can be seen at pages 226 to
250 of the reco rd. The record is only 24 pages, after translations from Pedi to
English is included. The hearing was therefore extremely short, and there are no
subpoenas on record. According ly, the Commission called no witnesses of their
own.

[142] It was submitte d that t he following is also apparent from the written record:

142.1 William and Josephine is questioned first;

142.2 Josephine indicates that Motshibudi Lawrence Sekgopo will respond on her
behalf and he is sworn in;

142.3 William then indicates that Peter Maloba Mohabe w ill respond o n his behalf
and he is sworn in;

142.4 According to the 11th Respondent, 20% of the public hearing was therefore
spent on welcoming the parties and swearing in the witnesse s.

142.5 It is submitted that t he mode of questioning is vague and general, at pag e 232
Dr Shilubane for the commission asks Mr Lawrence “what is your customary
law of succession” in an unspecified way, and Mr Lawrence immediately
responds that he is not sure h e understands the question, but then ventures an
answer in any event (page 23 2).

142.6 The 11th Respondent submitted that Shilubane appears to be questioning
Lawrence on the practices of today, and not those of 1922 (see pages 232 to
234).


142.7 It was submitted tha t at page 235, William then states his version in a general
way, again referr ing to the practice according to him as it is today . Dr
Shilubane’s style of questioning is quite different with William , and he appears
to be leading him and rephrasing his answe rs.

142.8 According to the 11th Respondent, t he commission then starts scrutinisin g the
founding of the community only at page 238.

142.9 The commission asks who Mamakobe’s mother was, and who he married as
a candle wife at page 238. The Commission nowhere asks fo r an explanation
why his mother was from Maake, and he married Mailula.

142.10 Abou t 8 pages is then spent on confirming the family trees which were
provided by both parties, and at page 246, 4 pages before the end of the
record, the commission merely as ks William to place his version of how the
diversion occurred on record.

142.11 William does so, saying the royal councillors sought a new surrogate mother
from Maake, and then states “one of the councillors” took care of her. This is
how William was borne.

142.12 The 11th Respondent submits that it is not stated on record who the
councillors were wh o took this decision, who the seed raiser was, or when this
occurred, although one must accept that this must have been around 1976
when William was borne.

142.13 It is also not explain ed how it came to be that Matsorane 1 was appointed
instead, and how governme nt had a hand in this process, if at all.

142.14 Lawrence is questioned and he states that they follow Bolabedu culture and
not baroka culture, and after this, the meeting is closed (pa ges 248 to 250). ----


[143] It was submitted by the 11th Respondent that t he abov e public hearing was
extremely superficial. The Committee does not once confront the parties with its
concerns, or test the evidence, or inform the parties which aspects require attention,
or even ask the parties to elaborate on certain issues that may be problematic, or
where there is disagreement. The committee could not have conducted the public
hearing in a more abbreviated way.

[144] It was f urthermore submitted that it app ears that o nly four people were questioned -
two from each side. The Commiss ion does not ask which other witnesses would be
able to attest to William ’s mother’s marriage, for example. Such information would
obviously be very useful, and should be subject ed to scrutiny, but they do not do so.

[145] It was further submitted that , there is no evidence on record that any further
interviews were conducted, or that an independent literature review was done.

[146] The only documents on record which are relevan t to the dispute, i.e the history of
this community, is the written submissio ns of each party.

[147] It is not apparent that anything was done to investigate the veracity of both sets of
submissions.

[148] When summarising the evidence in their report (p ages 198 to 203) the Committee
appears to blend and summarise the written sub missions of both sides, and what
was said at the public hearing. There is no indepe ndent literature, or witnesses, or
investigations.

[149] It was submitted that a t page 203, th e Commission unfairly states “Kgoshigadi
Mokgadi Josephine vouchsafed no answ er as to why the masechabas suddenly
came from Mailula families, yet they initially hailed from the Maake families.”


[150] As is clear from the oral testimony and the record in th is regard, the commission
never asked her for clarification, but what is mor e, the written submission of
Josephine at page 144 of the record states that it is disputed that the Royal Family
marries from the house of Maake only. It appears that the commiss ion did not read
all the written submissions.

[151] The 11th Respondent subm itted that t he Commission had the duty to investigate
these discrepancies and failed to do so.

[152] It was submitted that t he way in which the Commission settles this dispute, i s by way
of their “analysis” which the Court will see at page 203 and 204 of the record, which
succinctly lists only five points, namely: (1) two royal families are associated with
the production of Sekgopo senior traditional leaders, Mailula and Maake (2 ) the
allegation of the Claimant that Maake was also used is “uncontested” be cause
Lawrence did not know the name of all the preceding candle wives. The
commission therefore has no reason to doubt the assertion of the claimant (3) the
commission states th at Josephine failed to explain the diversion from Maake to
Mailula and theref ore, they accept the “version” of the cl aimant and lastly, they state
(4) Matsorane should have been a regent as a result.

[153] It was submitted that t he above “analysis” refers to the “versions” of the parties and
what aspects are “contested” and “not c ontested.” With respect, it is therefore clear
that they misunderstood their mandate, completely.

[154] It was submitted that it was their job, as the commission, to do an indep endent
investigation into the merits of the matter, and determine what happen ed, not to hold
a quasi -hearing and distinguish between versions like a judge would do in a Court
case.

[155] Their assertion that that the Second Respondent’s entourage failed t o establish
certain things, treats the Second Respondent like a plaintiff in a case that bears the
burden of proof.


[156] The 11th Respondent further submitted that the Commission is tasked with not only
applying the relevant customary law to the case be fore it, but also with determining
what that law was at the relevant time. This latter question depends primarily on
historical and social facts , which the Commission must establish through evidence
led before it and its own investigation. (11th Respondent ’s emphasis).

[157] The 11th Respondent questions the probative value of William’s testimony, along
with his spokesperson, as well as Josephine and her spokesperson, for that matter,
where the hearing is held 100 years after the events. It was submitted th at one
would expect a proper study to be conducted, to make a fair determinat ion in this
matter, but this never happened.

[158] It was further submitted by the 11th Respondent that t he Commission also nowhere
discusses how the erstwhile government officia ls performed their duties, or how the
alleged chieftaincy was diverted.

[159] It was submitted that a ccordingly, the report of the Commission is of minimal value.
In fact, it holds no value whatsoever. It contains no actionable information on which
the Premier could take a decision and is merely an expression of the Committees
opinion on the credibility of William and Josephine . One would expect the
Commission to have had recourse to other evidence, which it did not do.

[160] The 11th Respondent refer red to the matter of Sokhela v MEC Agriculture and
Environmental Affairs (Kwa zulu-Natal) 2010 (5) SA 574 at paragraph 55 where it
was stated as follows: -

“If the occasion identified as the opportunity to make representations is a meeting,
but the particip ants are unaware that it was intended to serve the purpose of
enabling repres entations to be made, and the ultimate decision maker does not
disclose the concerns that might lead him to take an adverse decision, it seems to

me that no opportunity to make re presentations has been given.” (11th Respondent’s
emphasis)

[161] The 11th Respondent submitted that i t is against this context that the Premier’s
decision should be viewed. The Premier makes the decision that the status quo
should remain, as Josephine ’s predecessors were not contested, and all customary
rituals and processes wer e followed when she was married.

[162] The report of the Kgatla Commission contains no investigation as to how she was
recognised, what went wrong from the side of government and when, how the
government departments appointed the wrong person, or which mi stakes were
made by the government at which point.

[163] The presumption of regularity therefore demands that these decisions be left intact,
since the “recommendation” of the c ommission does not even speak to them.

THE 11th RESPONDENT’S SUBMISSIONS O N THE GROUNDS OF REVIEW AND THE
APPROPRIATE ORDER THAT SHOULD FOLLOW :

[164] It was submitted by the 11th Respondent that t he founding affidavit in this matter
contained no grounds of review, but the supplementary affidavit was rather used to
set out all gr ounds of review.

[165] It was further submitted that William also makes some submissions that a decision
was already taken by the previous Premier to remove Josephine in 2010 and
appoint him. It is submitted that this internal intention, which was never a ctuated, is
irrelevant to these proceedings. That the Premier never issued the necessary
recognition certificate, nor did he publish the appointment in the government gazette
and inform the house of traditional leaders of such.

[166] The 11th Respondent submitted that n othing was done with regards to those
proceedings, which William lodged in terms of section 15(4) of the Limpopo Act, and

when no action was taken by the Premier, William up to today, has brought no
administrative review to compel him to t ake a decision as envisaged in PAJA, in
terms of the Act.

[167] The 11th Respondent submitted that a ccordingly, the review under case number
5799/2018 must be dismissed with c osts, including costs of counsel on scale B,
owing to the complexity of the m atter and the prolixity of the papers.

[168] It was however further submitted by the 11th Respondent that should the Court find
that the Premiers decision is in fact reviewable, on any of the grounds raised by the
Applicant, the question would then be wh at the appropriate remedy is in these
circumstances.

THE 11th RESPONDENDENT’S SUBMISSIONS ON AN APPROPRIATE REMEDY
SHOULD A REVIEW BE GRANTED: -

[169] It was submitted that Will iam seeks an order that the Premier’s decision is set
aside. In the event of grounds of review having been established, such an order will
be granted given the nature of this matter, and consequently, as submitted by the
11th Respondent, this remedy will not be discussed further.

[170] Following on that, however, William seeks t hat the Court, instead of remitting the
matter to the Premier, should substitute the Premier’s discretion with its own
discretion.

[171] William also seeks a declaratory order in relation to the rights of the parties in so far
as the disputes which served before the Kgatla Commission.

[172] It is submitted by the 11th Respondent that the Court has no jurisdiction to grant
prayer 4 as that order is sought outside of the 180 -day st atutory period in which the
Applicant was duty bound to bring their administr ative review or should have brought
such review.


[173] In this regard, it is important to note that in terms of PAJA and specifically section
6(2)(g) thereof, an administrative a ction susceptible to review is also an action which
consists of a failure to take a decision.

[174] By 2012, when their claim was submitted to the Kgatla Commission, William must
have known, at the latest, that their request to the Premier was not acted upon.

[175] It was submitted that William does not seek extension of that period to institute a
review. The 11th Respondent submitted further that t he consequent prayers also
follow on this prayer and was not submitted on further as they are dependent on the
ordering of prayer 4.

[176] In addition , it was submitted by the 11th Respondent that the Limpopo Act states
that a removal in terms of section 15 is carried out on request of the Royal Family as
defined in the Act.

[177] At the time the secti on 15 request was made by William and his entourage, no
member of William’s entourage or he himself had an acting or permanent
appointment which complies with section 15(1)(c) or any transitional provision in
terms of any legislation. This is apparent fro m the papers.

[178] The 11th Respondent submitted that a s a matter of law , they were not the Royal
Family, and had the Premier acted on their recommendation, his actions would have
been unlawful. It was submitted that i f the “ruling family” could be s omeone else
than the recognised senior traditional leader in terms of legisla tion, then there is no
need or purpose in setting aside such appointments, which is exactly what William
tries to do in this application.

[179] It is submitted that i n one brea th, he seeks a certificate of recognition to be issued to
him, and at the sam e time, he states that he and his followers sought the removal of
Josephine in 2010 already.


[180] According to the 11th Respondent, t hese assertions are mutually destructive. The
prayers in relation to the internal memos of the Premier in 2010, are th erefore clearly
included as a backstop and an afterthought.

[181] The 11th Respondent submitted that the main question is therefore, should the
Court, in the event that it decid es to review the Premier’s decision in 2018, remit the
matter or substitute t he decision of the Premier and s hould the Court gran t the
declaratory orders sought.

THE 11th RESPONDENT’S SUBMISSIONS ON REMITTAL AND SUBSTITUTION :-

[182] It was submitted that substitution of an Administrators decision, should only be
granted in the pr esence of exceptional circumstances , as stated in PAJA section
8(1)(c)(ii).

[183] The 11th Respondent further submitted that a s a general proposition and as
enunciated in Johanne sburg City Council v Administrator, Transvaal 1969 (2) SA 72
(T), a Court is slow to assume a discretion which has by statute been entrusted to
another tribunal or functionary. Generally, the Court will not substitute its discretion
for that of the functi onary, but rather remit the issue with appropriate instructions.

[184] The 11th Respondent submitted that as stated by Heher JA in Gauteng Gambling
Board v Silverstar Development Ltd 2005 (4) SA 67 (SCA), a remittal is almost
always the prudent and prope r course when granting the order for review of an
administrative decision, be cause the administrator “is generally best equipped by the
variety of its composition, by experience, and its access to sources of relevant
information and expertise to make the r ight decision, the Court typically has none of
these advantages and is requir ed to recognise its own limitations.”

[185] The 11th Respondent further submitted that i n the matter of Trencon Construction
(Pty) Ltd v Industrial Development Corporation of So uth Africa Ltd 2015 (5) 245 (CC)

the Constitutional Court notes that it is re levant to consider whether the Court has all
the relevant information before it, and whether the administrator has already applied
its specialised skills and knowledge, but even w here a Court has all the relevant
information before it, and the administrato r already applied its specialised knowledge
or skill in a instance, the nature of the decision may dictate that the Court must still
defer to the administrator despite having all the relevant information before it.

[186] It was submitted that t he Court must determine, ultimately, whether a substitution is
just and equitable, which involves a consideration of what is just and equitable to all
implicated parties.

[187] According to the 11th Respondent, William f rom the outset in applying for this order,
understood that the report of the Kgatla commission and the contents of the record
cannot stand on their own two feet. The deficiencies in this report are apparent on a
cursory re ading and t hat is obviously why they hired Professor Van Vuuren to
compile hi s own report, which contains literature, interviews and research which is
not found in the record.

[188] It was submitted that Van Vuuren goes much wider than the record, and t he bulk of
his report and the evidence that he has gathered, whatever its pro bative value, was
not on record, but should be considered new material. The 11th Respondent
submitted that i t is off course the case, those copies of the material that he relies on
is not at this stage before Court. He references such material in his bib liography to
his report and in the report itself, but it is not on the papers before the Court.

[189] It is submitted that t he content of his interviews with the “elders” whoeve r that may
be, which was conducted on the 7th and 8th of April 2021, is also not before the
Court. It was further submitted that none of these people who were interviewed by
either expert s, has ever been subject to cross examination in so far as where th ey
disagree with each other, not at the Kgatla Commission, and not at this Co urt.


[190] The 11th Respondent submitted that when assessing whether there is a dispute of
fact on the papers of an application, the Court will apply the test in Room Hire Co
(Pty) Ltd v Jeppe Street Mansions (Pty) Ltd , which states that a dispute of fac t can
only be present when (1) the Respondent denies the allegations made by the
Applicant and offers positive evidence to the contrary (2) when the Respondent
admits the allegati ons in the founding affidavit but offers other evidence to the
contrary and ( 3) When the Respondent concedes he has no knowledge of the facts,
but gives evidence as to why the facts alleged by the Applicant is not reliable.

[191] It was submitted that the factual disputes in this matter, a re in abundance. The
conflicting expert reports make that clear. It was submitted that t he Court cannot
possibly accept the one report or reject the other, without making sweeping
judgements on credibility without having had the benefit of cross examination and
other real and documentary evidence presented to it, and subject to scrutiny.

[192] It was further submitted that hitherto, for some reason, William has also elected not
to apply to have these issues referred to trial. This is probably not a case where
they can be referred to oral eviden ce, as the disputes are too far ranging. It was
submitted that a ccordingly, if the matter proceeds as is, it must be adjudicated on
the facts of the Respondent’s in so far as the declaratory order is concerned, and the
substitution for the decision.

[193] The 11th Respondent submitted that a Court should, in deciding disputed facts in
application proceedings, always be cautious about deciding probabilities in the face
of conflic ts of facts in the affidavits. This is so because affidavits are settled by l egal
advisers with varying degrees of experience, skill and diligence, and a litigant should
not pay the price for an adviser’s shortcomings. Judgment on the credibility of the
deponent, absent direct and obvious contradictions, should be left open.

[194] Lastly, the 11th Respondent submitted that the Premier obviously did not have any of
these reports before him when his decision was made. He has never been given an
opportunity to apply his resources, skills and expertise on the matter in relation to

what is stated in the reports of Mr’s Mkhari and Van Vuuren. According to the 11th
Respondent, it would therefore appear that the matter must be remitted .

THIS COURT’S ANALYSIS OF THE FACTS: -

[195] In my view, neither of the Respondents (Josephine, 10th, nor the 11th Respondents)
put forward any defence to William’s application for review. They only vehemtly
opposed the ancillary declaratory orders sought by William. Most of the 2nd, 10th and
11th Respondent’s opposition was rather a support of the applicat ion under case
number 2950/2024.

[196] What is however clear is that also Josephine, the 10th and 11th Respondents to
some extent accept that the Premier’s decision should be rev iewed and set aside.
They however do not agree that the ancillary declarator y orders should be granted
and that the matter should rather be remitted back to the Premier.

[197] From a reading of the papers, the records and considering the Premier’s decisi on
and reasons for his decision , the Premier failed to consider relevant cons iderations
and the evidence before him (Section 6(2)(e)(iii) of PAJA).

[198] The Premier further took the decision arbitrarily and capriciously if regard is had to
all the fact s that should have served before him (Section 6(2)(e)(iv) of PAJA) and his
decision was not rationally connected to the information before him or the reasons
given by him for his decision (Section 6(2)(f)(ii)(cc) of PAJA.)

[199] The way in which the Premi er exercised his powers and performed his functions
under the Framework Act a nd the Limpopo Act in pursuance of which this decision
was taken, was so unreasonable that no reasonable person could have so exercised
the power or performed the function. No re asonable person could have taken this
decision with the information that was before the Premier. (Section 6(2)(h) of PAJA).


[200] In my view, if the Premier did not agree with the recommendation by the Kgatla
Commission or could not have made an informed decision, which he could not, he
should have acted in terms of the empowerin g provisions of Section 59 of the
Traditional and Khoi -San Leadership Act , 3 of 2019 , read with the Limpopo
Traditional Leadership and Institutions Act, 6 of 2005 .

[201] In my vi ew, William has succeeded to allege and prove that the Premier has acted
contrary to the provisions of Section 6(2)(e)(iii), 6(2)(e)(iv) and 6(2)(f)(ii)(cc) and
(dd), as well as Section 6(2)(h) of PAJA . William has therefore, in my view
succeeded to make a proper case for judicial review of the Premier’s administrative
action and t he decision of the Premier stands to be set aside.

[202] The only question remaining is therefore whether the matter should be remitted back
to the Premier and whether this Cour t should make the ancillary declarotory orders.

[203] In terms of Section 8( 1)(c)(ii) of PAJA , a court is empowered to give an order that
is just and equitable, including, in exceptional cases, an order substituting the
Court’s decision for that of the ad ministrator. Circumstances under which a
substitution order may be granted a re not defined or identified in statute, however,
the Constitutional Court has held in Trencon Construction (Pty) Ltd v Industrial
Development Corporation of SA Ltd & another 2015 (5) SA 245 (CC) at para 35
that this is principally an inquiry into what is just and equitable in the circumstances.

[204] In Gauteng Gambling Board v Silverstar Development Ltd & Others 2005 (4) SA
67 (SCA) at para 28 it was held that where upon a prop er consideration of all the
facts, a Court is persuaded that a decision to ex ercise a power should not be left to
the designated functionary, the Court should order substitution.

[205] If a Court is in as good a position as the administrator to make the d ecision, the
Court should not hesitate to do so, particularly where the admin istrator is shown to
prefer a particular outcome, and a remittal to it will only lead to further delay and
expense. It was held by the Constitutional Court in Trencon Constructio n (Pty)

Ltd v Industrial Development Corporation of SA Ltd & another 2015 (5) SA 245
(CC) at para 47 that the enquiry entails the following: -

“In conducting this enquiry there are certain factors that should inevitably hold
greater weight. The first is w hether a court is in as good a position as the
administrator to make the deci sion. The second is whether the decision of an
administrator is a foregone conclusion. These two factors must be considered
cumulatively. Thereafter, a court should still consi der other relevant factors. These
may include delay, bias or the incompetenc e of an administrator. The ultimate
consideration is whether a substitution order is just and equitable. This will involve a
consideration of fairness to all implicated parties. It is prudent to emphasize that the
exceptional circumstances enquiry requi res an examination of each matter on a
case -by-case basis that accounts for all relevant facts and circumstances.”

[206] In my view, this court does not have all the relevant inf ormation before it. It is clear
there is a dispute of facts as to the history of the Sekgopo’s and in addition the
respective expert reports are contradictory. Needless to say that the enquiry done
by the Kgatla Commission, leaves much to be desired. In t his regard, I am in
agreement with the 11th Respondent’s submissions that if the Kgatla -Commission’s
report was sufficient to stand alone, it would not have been necessary to appoint a
further expert.

[207] This is a classic example where the State Respon dents’ failed the Sekgopo
Community and I find it unreasonable and might I ad d unacceptable that this dispute
has been dragging on for more than 30 years.

[208] It needs to be stated that in my view, all the parties lose sight of the relevant
legislation and the position in dispute. The dispute is about the position of a Senior
Traditional Leader, not a King or a Queen. In terms Section Section 12(1) of the
Limpopo Traditional Leadership and Institutions Act, 6 of 2005 stipulates as
follows: -


“Recognitio n of senior traditional leader, headman or headwoman

(1) Whenever a position of a senior traditional leader, headman or head woman is to
be filled -

(a) the royal family concerned must, within a reasonable time after the need arises
for any of those posit ions to be filled, and with due regard to the customary law of
the traditiona l community concerned -

(i) identify a person who qualifies in terms of customary law of the traditional
community concerned to assume the position in question; and

(ii) through the relevant customary structure of the traditional community
concerned and a fter notifying the traditional council, inform the Premier of the
particulars of the person so identified to fill the position and of the reasons for
the identification of the spe cific person.

(b) the Premier must, subject to subsection (2) -

(i) by notic e in the Gazette recognise the person so identified by the royal
family in accordance with paragraph (a) as senior traditional leader, headman
or headwoman, as the case may be;

(ii) issue a certificate of recognition to the person so recognised; and

(iii) inform the provincial house of traditional leaders and the relevant local
house of traditional leaders of the recognition of a senior traditional leader,
headman or headwoman”


[209] Having considered Section 12 of the Limpopo Traditional Leadership an d
Institutions Act, 6 of 2005, in my view, this court is not in the position to declare

William the Senior Traditional Leader because the Royal Family has to identify a
person who qualifies in terms of customary law of the traditional community
concerned t o assume the position in question and through the relevant customary
structure of the traditional community concerned and after notifying the traditional
council, inform the Premi er of the particulars of the person so identified to fill the
position and of the reasons for the identification of the specific person. In the
present matter there is a clear dispute as to who the Royal Family is who should
identify the relevant Senior Traditional Leader.

[210] In my view, there can be no recognition of William as Senior Traditional Leader prior
to the establishment of who the real Royal Family is and the appointment of William
as Senior Traditional Leader by the real Royal Family. Thi s court will be bypassing
the Royal Family’s role if this court is to issue a declaratory order in this regard.

[211] In terms of Section 59 of the Traditional and K hoi-San Leadership Act, 3 of
2019 , states as follows: -

“59. (1) (a) This section applies to any traditional leadership dispute other than a
dispute that was dealt wi th or is being dealt with by the CTLDC contemplated in
section 63(23).

(b) (i) Provincial legislation may provide for a mechanism to deal with
traditional leadership disputes, exc luding any dispute relating to a king or a
queen or a kingship or a queenship : Provided that such legislation may not be
inconsistent with this section.

(ii) Notwithstanding the relevant provisions of provincial legislation
contemplated in subparagraph (i) , a Premier may apply subsection (3).

(c) In the absence of provincial legisl ation as contemplated in paragraph
(b)(i), a Premier must apply the provisions of this section.


(2) Any traditional leadership dispute relating to a king, queen, principal
traditi onal leader, senior traditional leader, headman, headwoman, kingship,
queensh ip, principal traditional community, traditional community,
headmanship or headwomanship, must be dealt with by the President in the
case of a king, queen, kingship or queenship a nd by the Premier concerned
in the case of any other dispute and the Presiden t or Premier, as the case
may be, must —

(a) cause an investigation to be conducted by an investigative committee
designated by him or her which committee must, in the case of a di spute
concerning a king, queen, kingship or queenship include at least one me mber
of the National House and in the case of any other dispute include at least
one member of the relevant provincial house, to provide a report as well as
recommendations on the matter in dispute within 60 days from the date of
designation of the investi gative committee; and

(b) refer the report to the relevant royal family or, where applicable, relevant
traditional council for its written comments which must be submitted to the
President or Premier, as the case may be, within 60 days from the date of
such referral.

(3) The President or the relevant Premier, as the case may be, may refer any
dispute, including any report, recommendations and comments contemplated
in subsection (2) , to the Minister for written comments and advice which must
be submitted to the President or Premier, as the case may be, within 60 days
from the date of such referral.

(4) After having considered the report and recommendations of the
investigative commit tee, the comments of the royal family or traditional
council and, where appli cable, the comments and advice of the Minister, the
President or relevant Premier, as the case may be, must take a decision on

the matter in dispute and inform the parties to the dispute in writing of his or
her decision.”

[212] In my view, it would be in the interest of justice that the matter be referred back to
the Premier and for the Premier to exercise his powers in terms of Section 59 of the
Traditional and K hoi-San Leadersh ip Act 3 of 2019 , read with the Limpopo
Traditional Leadership and Institutio ns Act, 6 of 2005 . I pause here to state that
in Mogale and Others v Speaker of the National Assembly and Others [2023]
ZACC 14 the Constitutional C ourt on 30 May 2023 declared the Traditional and
Khoi-San Leadership Act 3 of 2019 invalid, however the order declaring the Act
invalid was suspended for a period of 24 months to enable Parliament to re -enact
the statute in a manner that is consistent with the Constitution or to pass another
statute in a manner that is consistent with the Constitution. Therefore, currently, the
Traditional and Khoi San Leadership Act, 3 of 2019 is still applicable.

COSTS: -

[213] William applied for costs only against the 1st, 2nd and 3rd Respondent’s, however the
11th Respondent joined at a later stage and opposed the application. Also the 10th
Respondent elected to proceed to oppose the applicati on. In my view, there is no
reason why the general rule applicable to costs i n that the costs should follow the
event, should not be applicable in the present matter. In the result the 1st, 2nd, 3rd,
10th and 11th Respondents should be ordered to pay the costs, jointly and severally,
the one to pay, the other to be absolved.

CAS E NO 2950/2024: -

[214] This then brings me to the second matter, Case No 2950/2024. In this review
application, the questio n on the merits is whether the A pplicants (the Sekgopo
Traditional Council and Josephine) have shown that the Kgatla Commission has
misdirected itself and whether its proceedings should be reviewed.


[215] The Applicants have however instituted this “2024 review” application approximately
5 years late. The App licants apply in their Notice of Motion for the following relief: -

215.1 Cond onation of the late filing of this review application, outside the prescribed
180 days as provided for in Section 7(2) of the Promotion of Administrative
Justice Act, 2000;

215.2 Reviewing and setting aside the First (The Commission on Traditional
Leadersh ip Disputes and Claims (“CTLDC”), Second (Limpopo Provincial
Committee on Traditional Leadership Disputes and Claims) and Sixth (Mr. T.
Mahosi N.O.) Respondents’ decision to accep t the dispute referral by the
Seventh Respondent (William Matsorang Sekgopo ( “William”) without due
compliance with Section 21(2)(a) and (b) read with Section 26 of the
Traditional Leadership Framework Act, 41 of 2003.

215.3 An order reviewing and setting aside the final recommendations and findings
of the Second and Sixth Responde nts;

215.4 An order directing that the dispute regarding the Senior Traditional
Leadership of Sekgopo Traditional Community, be referred to trial or for oral
evidence before the L impopo High Court; and lastly

215.5 That the Eight and Ninth Respondents be o rdered to pay the costs of this
review application, together with any party opposing the application.

[216] Before dealing with the merits of the application, I deem it necessary to deal with the
application for condonation first.

CONDONATION APPLICATION:


[217] The Applicants submitted that they acknowledge that the review application is
brought more than 180 days after the report of the 2nd and 6th Respondents were
issued on Augus t 2017.

[218] In their explanation, the Applicants submit that on advice from their legal team, on 12
November 2019, they instituted review proceedings against the findings and
recommendations of the Kgatla Commission under Case No 7700/2019.

[219] It wa s submitted that on or about 8 March 2021, Adv. Monyela, acting on their
beha lf, received communication for William’s attorneys in which they proposed
consolidation of the matters under Case Number 5799/2018 and 7700/2019. On the
same day, Adv. Monyela re sponded to William’s attorneys and indicated that he is of
the same mind and thus amenable to the proposition in which they proposed
consolidation of the matters.

[220] William’s attorneys proceeded to issue and application for consolidation of the
matter s under case number 5799/2018 and 7700/2019 on 31 May 2021 . On the 8th
of Jun e 2021, Adv. Monyela however proceeded to file a Notice of Withdrawal of the
Review application under Case Number 7700 /2019. The Notice of Withdrawal reads
as follows: -

“Kindly t ake notice that the Applicants hereby withdraw their application in the above
Honourable Court against the Respondents.”

[221] The Applicants submit that they cannot explain why, and how it came about that
Adv. Monyela withdrew the review application. The y however wish to submit that
the only time they consulted with Adv. Monyela regarding the consolidation, and
after his explanation, they were of the view that the matters should not be
consolidated and William must prove his case and they will proceed to prove their
own case separately.


[222] The Applicants submit that throughout their engagement with Adv. Monyela since
June 2021, they were not aware that the review application under case number
7700/2019 was withdrawn. It was only around June/July 2023, when Josephine was
unhappy with the attention and the service the matter was receiving, she
approached her current legal representatives, HLM Mamabolo Attorneys, who
accepted the instruction and proceeded to assist h er in preparation for the court date
of 30 October 2023.

[223] Josephine submitted that Messrs HLM Mamabolo Attorney s indicated that she
needed to open a file and as this matter involved a review application under Case
Number 5799/2018, they will require a substantial amount of money as a depos it.
She submitted that she was also informed that Counsel will have to be br iefed in the
matter.

[224] Josephine further submitted that the Sekgopo Traditional Community is not financial
affluent, and as such, in order to provide funding for the litigatio n, she needed to pay
for the litigation from the funds she received as a stip end from the Limpopo
Provincial Government paid to Senior Traditional Leaders.

[225] HML Mamabolo Attorneys proceeded to send a notice of termination of mandate and
request that t he contents of the Applicants file be provided to Adv. Monyela on 7
August 20 23. The court file contents were obtained around mid -August 2023.
Counsel was subsequently briefed and consulted at around the end of August 2023.

[226] The Applicants submitted that during the consultation with Counsel, he advised them
that they should h ave brought a review application to set aside the KGatla
Commission’s report. The Applicants indicated that a review application was indeed
issued. It was only then that they re alized that the documents under case number
7700/2019 was not provided to Cou nsel.

[227] The Applicants submitted further that it was only then that their attorneys of record
sent a letter to Adv. Monyela requesting the documents under case number

7700/ 2019. It was also agreed that an expert report would be required in this mat ter
to ensure that the Applicants are able to place before court and independent opinion
which would deal with all the customary practices of the Sekgopo Traditional
Community.

[228] On 27 September 2023 a consultation was held with Counsel and Mr. Mkari wherein
Counsel raised the confusion regarding the application for Joinder and the Notice of
Withdrawal of the review application under case number 7700/2019.

[229] On or about 2 8 September 2023, Joubert & May Attorneys wrote a letter to the
Applicants le gal representatives advising them that the application under Case
Number 7700/2019 was withdrawn. According to Josephine, this was the first time
she became aware with confirmatio n of this sad state of affairs.

[230] According to Josephine, Mr. Mamabolo o n advic e of Counsel contacted Adv.
Monyela to ascertain the veracity of the withdrawal of the review application under
case number 7700/2019. Mr. Mamabolo phoned Adv. Monyela and joined the
Applicants to the call. Adv. Monyela confirmed that the Applicant s instructed him to
withdraw the review application under case number 7700/2019.

[231] According to Josephine, she was not aware that the review application was
withdrawn. An ur gent application was then brought to reinstate the review
application which w as struck of the roll for lack of urgency and a defective Founding
Affidavit, on 6 February 2024.

[232] On the 22nd of February 2024, the Applicants attorneys addressed a letter to Joubert
& May Attorneys requesting consent to reinstate the review applica tion under case
7700/2019.

[233] On the 4th of March 2024, the Applicants decided that it would be in their best
interest to re -institute the review proceedings a fresh, instead of trying to reinstate
the proceedings under case number 7700/2019. Accordin g to the Applicants there

was no wilful disregard of the rules and timeframes of the court nor the provisions of
PAJA to bring the review within 180 days.

THE RESPONDENTS’ SUBMISS IONS: -

[234] The Respondents submitted that i n the present application (“ the 2024 review ”) the
applicants not only bear the onus to show that condonation should be granted for the
late institution of the review application, but they also have to prove that the grounds
upon which they wish to review and set aside the Kgatla Commissi on’s proceedings,
have merit. In this respect they have the additional burden of convincing this Court
that, despite the deference that must be paid to specialist bodies such as t he Kgatla
Commission, those proceedings were so flawed that they are to be re viewed.

[235] It was submi tted that the A pplicants should fail in both respects and that their review
application should be dismissed with costs.

[236] The Respondents submitted that Section 7(1) of the Promotion of Administrative
Justice Act, 3 of 2000 ( “PAJA ”) provides that any proceedings for judicial review
must be instituted “ without unreasonable delay and not later than 180 days” after the
date on which the person concerned was informed of the administrative action,
became aware of the action and the reasons for it, or might reasonably have been
expected to become aware of the action and the reasons.

[237] It was further submitted that Section 9(1) of PAJA provides that the period of 180
days referred to in section 7 may be extended for a fixed perio d by a Court on
application. Section 9(2) of PAJA provides that the Court may grant an application
for an extension of this time “ where the interests of justice so require” .

[238] The Respondents submitted that t o put these time periods in perspective, the
following dates are relevant:


238.1 The Kgatla Commission signed off its report and recommendations on
4 December 2017.

238.2 The Premier declined to approve the report and recommend ations on
23 April 2018 and made his decision known to the respective parties .

238.3 The applicant in the claim before the Kgatla Commission, William
Matsorang Sekgopo (“ William ”), took the Premier’s decision on review
already on 26 September 2018 in the 2018 re view application which was
served on Mokgadi Josephine Sekgopo (“ Josephine ”) shortly thereafter.

238.4 Josephine filed her first answering affidavit in the 2018 review
application already on 25 October 2018.

238.5 The A pplicants therefore knew since at least October 2018 of the
Kgatla Commission’s administrative decision and the reasons for it, with
the result that the present review application should have been instituted
by no later than April 2019.

238.6 The A pplicants did institute review proceedings in an application
issued on 12 November 2019 under case number 7700/2019, more than a
year aft er Josephine became aware of the Kgatla Commission’s report
and findings. In that review application no condonation was sought in the
Notice of Motion for the late institution of the proceedings and the
application was also not proceeded with. That applica tion was withdrawn
by a notice of withdrawal filed on 7 June 2021 by her erstwhile legal
representative. On the date of the hearing of the 2018 review on 16
October 2023 the appl icants brought an application for reinstatement of
the review application und er case number 7700/2019. This application
was struck f rom the roll by the Judge M. G Phatudi J (as he then was) in his
judgement dated 6 February 2024 on the basis that it was not urgent and
secondly that it was fatally defective. Both the reinstatement a pplication

and the 2019 review application had since been abandoned and replaced
by the present application.

[239] It was submitted that t he present application, which was issued on 26 March 2024 is
therefore approximately 5 years out of time.

[240] The Respondents submitted that a delay in challenging administrative action may
serve as a bar to such challenge. As pointed out by Hoexter and Penfold,
Administrative Law in South A frica (3rd edition) at page 720 there are two main
reasons for what is often referred to as the “ delay rule ” namely: “to curb potential
prejudice arising from the delay; and the value of finality and certainty in respect of
public decision -making. As Kha mpepe J remarked in Tasima , delay ‘can prejudice
the respondent, weaken the a bility of the court to consider the merits of a
review, and undermine the public interest in bringing certainty and finality to
administrative action’.”

[241] The Respo ndents further submitted that Section 7(1) of PAJA has been interpreted,
and is certainly open to such interpretation, that a delay may be unreasonable even
if proceedings are brought within the 180 -day limit.

[242] The Respondents further submitted that once the 180 -day limit is reached, the delay
is taken to be unreasonable. In Opposition to Urban Tolling Alliance v South African
National Roads Agency Limited [2013] 4 All SA 629 (SCA) at par 26 the Court stated
the position as follows:

“At com mon law, application of the undue delay rule required a two -stage enquiry.
First, whether there was an unreasonable delay and, second, if so, whether the
delay should in all the circumstances be condoned (see eg Associated Institutions
Pension Fund and oth ers v Van Zyl and others 2005 (2) SA 302 (SCA) at
paragraph 47 [also reported at [2004] 4 All SA 133 (SCA) - Ed]). Up to a point, I
think, section 7(1) of PAJA requires the same two -stage approach. The difference
lies, as I see it, in the Legislature's det ermination of a delay exceeding 180 days as

per se unreasonable. Before the e ffluxion of 180 days, the first enquiry in applying
section 7(1) is still whether the delay (if any) was unreasonable . But after the 180 -
day period the issue of unreasonableness i s pre -determined by the Legislature; it is
unreasonable per se. It follows that the court is only empowered to entertain the
review application if the interest of justice dictates an extension i n terms of section
9. Absent such extension the court has no a uthority to entertain the review
application at all. Whether or not the decision was unlawful no longer matters. The
decision has been "validated" by the delay (see eg Associated Institutions Pe nsion
Fund (supra) at paragraph 46). That of course does not m ean that, after the 180 -
day period, an enquiry into the reasonableness of the applicant's conduct becomes
entirely irrelevant. Whether or not the delay was unreasonable and, if so, the extent
of that unreasonableness is still a factor to be taken into acco unt in determining
whether an extension should be granted or not (see eg Camps Bay Ratepayers'
and Residents' Association v Harrison [2010] 2 All SA 519 (SCA) at paragraph 54)”
(my underlining).

[243] The Respondents referred to Campsbay Rate Payers’ and Residents’ Association v
Harrison [2010] 2 All SA 519 (SCA) at para 54 the SCA discussed the requirements
for the granting of an extension under section 9(2) of PAJA as follows: “The
ques tion whether the interests of justice require the grant of suc h extension depends
on the facts and circumstances of each case; the party seeking it must furnish a full
and reasonable explanation for the delay which covers the entire duration thereof
and the relevant factors include the nature of the relief sought, the extent and cause
of the delay, its effect on the administration of justice and other litigants, the
importance of the issues to be raised in the intended proceedings and the prospects
of su ccess ”.

[244] The Respondents submitted that t his is simila r to the test applied by the
Constitutional Court in applications for condonation where the Rules of the Court
were not complied with. See in this respect Mphephu -Ramabulana v Mphephu 2022
(1) B CLR 20 (CC) at para 33 where it was put as follows: “ The quest ion in each case
is ‘whether the interests of justice permit’ that condonation be granted. Factors such

as the extent and cause of the delay, the reasonableness of the explanation for the
delay , the effect of the delay on the administration of justice and other litigants, and
the prospects of success on the merits if condonation is granted, are relevant to
determining what the interests of justice dictate in any given case” (footnotes
excluded i n the quotation).

[245] The Respondents submitted that in applying this test and taking into account the
factors referred to above, the A pplicants have not made out a case for the extension
of time that they seek (presumably an extension of time from Apr il 2019 to 26 March
2024 when this application for review was issued).

[246] The Respondents submitted that t here is firstly no reasonable or full explanation for
the delay and it certainly does not cover the entire duration of the delay:

246.1 They knew of the administrative decision and the reasons there for by
Octobe r 2018 at the latest.

246.2 It is clear from paragraph E.(f) of the founding affidavit at page 39 that
the applicants were already advised on 12 November 2019 that they had
to institute review procee dings against the findings and recommendations
of the Kgatla C ommission, which they did under the now abandoned case
number 7700/2019.

246.3 They make no attempt to explain why that application did not even
reach the stage where they complied with Rule 53(3) b y delivering such
portions of the record as may be necessary t o the registrar and each of
the other parties, with the result that the time within which to file answering
affidavits, never commenced by the time that the review application was
withdrawn on 7 June 2021. No explanation was given in that application
why i t was instituted late, save to state that they were not provided with
the Kgatla Commission’s report until the Premier’s decision was taken on
review.


246.4 The statement in paragraph E.(m) at page 41 of the paginated papers
is also for another reason significan t. In this paragraph Josephine confirms
that she has throughout and since William launched his review application
in 2018, consulted with her attorneys in the presence of those members of
the ro yal family who support her. Although the intervention applica tion
brought by those same persons was granted in the 2018 review
application by this Honourable Court, it is clear from the answering
affidavit which the eleventh respondent filed in that appli cation, that the
true motive for this intervention was to have a proverbial second bite at the
cherry attempting to supplement the weak defence raised by Josephine in
the 2018 review application.

246.5 The further statement in this paragraph however, namely t hat
Josephine and those members of the royal family were unawa re that her
review application under case number 7700/2019 was withdrawn, has
conclusively been shown to be false . William’s supplementary founding
affidavit in the 2018 review application was d elivered on 30 March 2022.
In several places in that affidavi t, he mentioned that the review application
under case number 7700/2019 had been withdrawn.

246.6 Josephine delivered an answering affidavit, in which she dealt with the
supplementary founding affida vit and Prof van Vuuren’s report, on 6 June
2022. She and th e members of the royal family who accompanied her
during consultations, therefore not only read those statements regarding
the withdrawal, but also filed an answering affidavit to those allegati ons
which was delivered on 6 June 2022.

246.7 The A pplicants were therefore aware since at least June 2022 that the
previous review application had been withdrawn, but tender no
explanation for waiting almost a further two years before the present
application was instituted.


246.8 The repeated statements that Josephine and h er supporters were
therefore unaware of the withdrawal of her own review application,
including the statement that she issued instructions to proceed with the
present application “ as soon as ” she was “made aware of the fact” that the
findings and recommend ations of the Kgatla Commission “ exist in fact and
remain binding unless set aside by a Court of law”, are not only patently
incorrect, but offers no reasonable explanation for the delay to wait with
the issuing of this application until 26 March 2024, sho rtly before the 2018
review application was again enrolled for hearing in this Court on 15 May
2024. This, and the very late application for intervention by the very same
persons who consulted w ith her throughout this dispute, caused yet
another postponeme nt of the 2018 review application.

[247] It was submitted by the Respondents that t he effect of this delay on the
administration of justice and the other litigants, including the seventh and e leventh
respondents, the CTLDC (the second respondent) and the Commissioners of the
Kgatla Commission (third to sixth respondents), are profound:

247.1 The CTLDC had a limited lifespan. The Limpopo Provincial Committee
of the CTLDC was established in Provinc ial Gazette 2071 of 11 May 2012
with effect 14 May 2012 and ha d a lifespan up to 31 December 2015. Due
to its workload, the public hearing into William Matsorang Sekgopo’s claim
only took place on 14 July 2017 and, as stated above, the provincial
committe e signed off on its report on 4 December 2017.

247.2 This was a ca se where any review application against such report had
to be launched without any delay and doing so within the 180 -day time
period, would have been reasonable. To expect these Commissioners,
six years down the line and years after the Commission’s manda te
terminated, to defend their decision, is unreasonable and prejudicial. It is
not even clear if they had been properly served with the application.


247.3 As to William Matsorang Sekgopo, he and the Sekgopo Royal Family
already lodged the first dispute into the appointment of Josephine as
acting traditional leader on behalf of her son Koma in 1992, more than
three decades ago. Before the lodgement of his claim before the CTLDC
in 2005, their complain ts were considered by the Commission on
Traditional Authoritie s in 1995 who met with all the interested parties,
including Josephine, and held in favour of William. Thereafter the
Ralushai Commission again heard evidence on this dispute in 1997 and
again found in favour of William. Interestingly Josephine’s spokespe rson
who gave evidence before the Ralushai Commission, Lawrence
Motcheudi Sekgopo, and who still supports her, conceded before the
Ralushai Commission that no rituals such as timamellô were perf ormed
when Josephine was married, one of the reasons why the R alushai
Commission held against her.

247.4 In 2010 after the lodgement of an application by the royal family in
terms of section 12(1) of the Limpopo Act, this dispute was again
considered and decide d in favour of William when the previous Premier
granted this application. That is a binding administrative decision that has
not been set aside on review.

247.5 William’s claim which was lodged with the original Commission in 2005
was relodged, with further su pporting documents with the second
Commission in May 2012. It is now 12 years later and William is still
waiting for justice to be done, despite the many findings in his favour,
including the finding of the Kgatla Commission in December 2017 which is
only now taken on review by the applicants. He is with respect e ntitled to
finality.

[248] The Respondents submitted that a s to the merits of the review application, it is
submitted that the merits are weak. The grounds upon which the applicants rely for

the review of the Kgatla Commission’s proceedings are extremel y limited and
without any merit.

CASE LAW AND THE COURT’S ANALYSIS:

[249] In my view, t he Applicants’ application for condonation is tainted with explanations
and reasons so unreasonable, impl ausible and improbable that it is to be regarded
as being fals e.

[250] I find the Applicants’ submissions that they were not aware that the review
application under case number 7700/2019 was withdrawn on 7 June 2021, until only
4 October 2023, to be highl y improbable and false beyond any doubt.

[251] William in his supplementary founding affidavit which was filed on the 30th of March
2022 at paragraph 7.2 thereof stated as follows: -

“…The Premier filed the same defective Record in that review. The second
respondent’s review application was subsequently withdrawn.”

[252] William further stated in his supplementary founding affidavit at paragraph 7.11 as
follows: -

“I also sought an order that the two review applications be heard together, but prior
to the hearing of the joinder application, the second respondent wi thdrew her own
review application in which she sought the setting aside of the KGatla Commission’s
findings and recommendations. The Honourable Court will be addressed on the
implications of thi s withdrawal at the hearing of this application.”

[253] The Ap plicants deposed to a supplementary answering affidavit on 6 June 2022 in
which they stated as follows: -


“4. In this affidavit, wherever I make submissions of legal nature, I do so on the
advic e of my legal representative which advice I verily accept.

5. …

6. I do not intend to deal with every allegation made by the applicant in his
founding affidavit and supplementary founding affidavit and my failure to deal with
allegations therein is not a n admission of their correctness but denied to the extent
of their inconsistency with what is set out in the first answering affidavit and this
affidavit…..”

And further at AD PARAGRAPH 7: -

“10. To an extent that the applicant narrates the genesis of thi s application to this
point where he deposed to the supplement ary affidavit, I respond thereto on this
affidavit only to relevant matters. My failure to respond to irrelevant matters is not an
admission of same.”

[254] What is clear from the above respons e by the Applicants is that they have read
William’s supplemen tary founding affidavit, they took notice of the contents thereof,
but chose to only respond to relevant matters. The Applicants further confirmed that
they verily accept the advice of their le gal representative.

[255] The Applicants therefore at least in two instances were made aware, at the latest on
or about June 2022, had to be aware that their review application was withdrawn , yet
the Applicants chose to sit idle and do nothing until Mar ch 2024.

[256] Furthermore, considering the on-going litigati on, the filing of further documents and
affidavits, the set down of the matter and the fact that the Applicants were
throughout represented by legal representation, I find it highly improbable a nd in fact
false that they did not know for approximately 3 ye ars that their application was
withdrawn.


[257] In addition, the Applicants, after according to their version having become aware that
their application was withdrawn on or about 4 October 20 23, waited until March 2024
to bring this review application – a further 5 months.

[258] In my view, the Applicants argument is plainly implausible and misconceived and
underscores the wanton disregard displayed by the Applicants for the rules of the
court .

[259] In any event, in my view, where non observance has bee n flagrant and gross, as in
this case and no reasonable and acceptable explanation for the delay has been
advanced, an application for condonation should be refused whatever the prospects
of suc cess might be. (See Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at
765 A -C; National Union of Mineworkers & Others v Western Holdings Gold
Mine (1994) 15 ILJ 610 (LAC) at 613 E .) Having regard to the a bove, there is in my
view no reasonable and cogent explanation proffered by the Applicants.

[260] Having regard to the history of litigation, as well as the importance of the matter to
the Appl icants, it would be inconceivable and incomprehensible why the Applicants
would not have had any interest in obtaining information from their attorneys
regarding the conduct of their review for approximately 2 years. The Applicants
cannot hide behind their counsel ’s remissness or ineptitude , if there were indeed
any, in these circumstances. Whilst there are cases where the court will show great
reluctance to penalize a litigant for the conduct of his attorneys , this is not such a
case. The Applicants , in my view cannot be held to have been without blame for the
delay in approaching the court for condonation and the blame for the delay must not
only fall on their previous counsel but must be ascribed to them as well , if there is
any truth in their submissions in this regard . In any event, the remissness and
negligence o f the Applicants’ counsel is so inexcusable to warrant the refusal of an
application for condonation notwithstanding the blameworthiness of the Applicants .
Even if no blame can be ascribed to th e Applicants but to their legal representation ,
it is accepted that in deserving cases such as this one: I


“There is a limit beyond which a litigant cannot escape the results of his Attorney’s
lack of diligence or the insufficiency of the explanation tender ed. To hold otherwise
might have a disastrous effect upon the observance of the Rules of this Court”
(Salojee v and Another NNO v Minister of Community Development 1965 (2) SA
135 (A) AT 14 C )

[261] Even if t he Applicants might have had a good prospect of success, the non-
observance of the rules has been flagrant and gross in this case, and the Applicants
submissions are so far removed from the poss ible truth that an application for
condonation should not be g ranted whatever the prospects of success.

[262] In this case I adopt the view that whatever sympathy the Court might have shown for
the Applicants must yield to the more important principle th at a flagrant disregard for
the court rules should not be coun tenanced. (See Moraliswani v Mamili 1989 (4)
SA 1 at 10E -F, Ferreira v Ntshingila 1990 (4) SA 271 A at 281J -
282A, Blemmenthal & Another v Thomson NO [1993] ZASCA 190 ; 1994 (2) SA
118at 121I -122 B .)

[263] In the result, the condonation application stands to be dismissed. The only issue
remaining is the issue of costs. As in case number 5799/2018, there is no reason
why costs should not follow the event. In the result, the Applicants (Sekgopo
Traditional Council and Josephine, should bear the costs, jointly and severally, the
one to pay, the other t o be absolved.

[264] In the result, I therefore make the foll owing order: -

CASE NUMBER: 5799/2018: -

264.1 The decision of the First Respondent (The Premier) taken on 23 April 2018
not to approve the recommendation that the Applicant’s (William’s) claim for
the restoration of the Sekgopo Senior Traditional Leadership be g ranted, as

contained in a report by the Provincial Committee of the Commission on
Traditional Leadership Disputes and Claims (the Fifth Respondent) dated 4
December 2017, is reviewed and set asi de.

264.2 The matter is remitted back to the Premier for his conside ration and to be
dealt with in accordance with the empowering provisions of Section 59 of the
Traditional and Khoi -San Leadership Act , 3 of 2019, read with the Limpopo
Traditional Leadership and Institutions Act, 6 of 2005 .

264.3 The 1st, 2nd, 3rd, 10th and 11th Respondents are ordered to pay the costs of the
application, jointly and severally, the one to pay the other to be absolved,
including the costs of two counsels (One Senior and One Junior) only in the
event where so employed. The costs of the application are to be taxed and
paid on Scale B, except in respect of the Senior Counsel’s costs, which
costs are to be taxed and paid on Scale C.

CASE NUMBER 2950/2024: -

264.4 The application for condonation is dismissed and consequently , therefore the
application for r eview under Case Number 2950/2024 is also dismissed .

264.5 The Applicant s are ordered to pay the costs of the application , jointly and
severally, the one to pay, the other to be absolved , including th e costs of two
counsels (One Senior and One Junior) only in th e event where so employed.
The costs of the application are to be taxed and paid on Scale B, except in
respect of the Senior Counsel’s costs, which costs are to be taxed and paid
on Scale C.


___________________
M. NAUDÈ -ODENDAAL
JUDGE OF THE HI GH COURT,

LIMPOPO DIVISION,
POLOKWANE


APPEARANCES:

HEARD ON : 26 JULY 2024
JUDGMENT DELIVERED ON : 21 JANUARY 2025.
This judgmen t was handed down electronically by
circulation to the parties’ representatives by email.
The date and time for hand -down of the judgment
is deemed to be 21 JANUARY 2025 at 10 h00

FOR THE APPLICANT IN CASE NUMBER 5799/2018
AND THE 7th AND 11th RES PONDENTS IN
CASE NUMBER 2950/2024 : Adv. H. Havenga SC
INST RUCTED BY : Joubert & May Attorneys
C/O De Bruin Oberholzer Attorneys
Polokwane
c.oberholzer@dbolaw.co.za
aldo@joubertmay.co.za

FOR THE 2nd and 10 th RESPONDENTS IN
CASE NUMBER 5799/2018 AND
THE APPLICANTS IN
CASE NUMBER 2950/2024 : Adv. M.H. Masilo
INSTRUCTED BY : HLM Mamambolo Attorneys
hlm@hlmlegal.co.za

FOR THE 11th RESPONDENT IN
CASE NUMBER 5799/2018 AND
THE 11th RESPONDENT IN

CASE NUMBER 2950/2024 : Adv. A.C. Diamond
INSTRUCTED BY : Diamon Inc. Attorneys
theo@diamondinc.co.za

FOR THE STATE RESPONDEN TS: NONE
THE OFFICE OF THE STATE ATTORNEY,
POLOKWANE
Pmalatji@justice.gov.za
Mkgopa@justice.gov.za
Mchuene@justice.gov.za