REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
CASE NUMBER: 2060/2024
(1)
(2)
(3) REPORTABLE: ~NO
OF INTEREST TO THE JUDGES: ~NO
REVISED.
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DATE 25 MARCH 2025 SIGNATURE ............................. .
In the matter between:
YUSTO FAMANDA CHABALALA
SIYANDHANI TRADITIONAL COUNCIL
-and-
THE MABUNDA TRADITIONAL COUNCIL
PHENI CYPRIAN NGOBE
HASANIBOOIMAKHUBELE
8001 MAHLAULE 1 ST APPLICANT
2ND APPLICANT
18T RESPONDENT
2ND RESPONDENT
3RD RESPONDENT
4TH RESPONDENT
2
GIDEON FRIDAY SIBUYI 5TH RESPONDENT
6TH RESPONDENT OTHER ILLEGAL OCCUPANTS OF THE SIYANDHANI
TRADITIONAL COMMUNITY LAND
Delivered
Date heard
Coram
BRESLER AJ:
Introduction: 25 March 2025
This judgment was handed down electronically by circulation to
the parties' legal representatives by e-mail. The date and time
for hand down of the judgment is deemed to be 25 March 2025
at 10:00 am.
4 November 2024
Bresler AJ
JUDGMENT
[1] The Applicants apply for interdictory relief against the Respondents in the following
terms:
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1.1 Interdicted and prohibiting the First and / or Second Respondents from
allocating plots and I or stands in the traditional land placed under the
jurisdiction of the Siyandhani Traditional Community;
1.2 Interdicting and prohibiting the First and / or Second Responden ts from
collecting a special levy (traditional authority levy) from the residents of the
Siyandhani Traditional Community, which residents reside under the
territorial jurisdiction of the Applicants .
1.3 Interdicting and prohibiting the Third and / or Fourth Respondents from
allocating plots of land and / or stands on behalf of the First and / or Second
Respondents;
1.4 Interdicting the Fifth Respondent , or any other unlawful occupier of the land
belonging to the Siyandhan i Traditional Community who have been
allocated such land by the First, Second, Third and/ or Fourth Respondents
from utilising the land and to:
1.4.1 Stop building their structures on the land;
1.4.2 Demolish any such structures that they have already built on the
land;
1.4.3 Stop conducting their business activities on the land; and
1 .4.4 To not trespass on the land and / or use the land without obtaining
permission from the Applicant.
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1.5 Costs against any Respondent opposing the proceedings.
[2] The application was initially enrolled for hearing on the urgent roll on 26 March 2024.
On this day, the matter came before the Honourab le Judge Muller. It appears from
the court file that the matter struck from the roll with costs. The Rule 30 application
was dismissed with costs.
[3] The Application is opposed by the First and Second Responden ts. The First and
Second Respondents also launched a Counter Application for the following relief:
3.1 Declaring that the enrolment of the main application is irregular and setting
same aside;
3.2 Dismissing the main application with costs on attorney and client scale;
alternatively
3.3 Striking the main application from the roll with costs on attorney and client
scale.
[4] The Counter Application was premised on the submission that the initial order
granted by the Honourable Muller J stated that the main application was dismissed
(as opposed to struck from the roll). The First and Second Respondents therefore
submitted that the alleged revised order was irregularly obtained.
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[5] At the hearing of the Application, the First and Second Respondents argued, in line
with the Counter Application, that the Application was irregularly enrolled as it was
previously dismissed by the Honourable Muller J and on the 26th of March 2024. As
it was dismissed, it cannot be revived my mere enrolment. This Court however
indicated that the order was clearly varied by the Honourable Judge Muller
personally as the variation of the order (providing that the application was only
struck from the roll with costs) is accompan ied by his signature.
[6] This Court consequently dismissed the first objection raised in the Counter
Application with costs, including costs in respect of two counsels, where so
employed , on Scale B. Reasons were given in court extempore.
[7] Hereafter the First and Second Respondent raised the objection that the Notice of
Set Down fails to comply with the provisions of Rule 6(5) in that a new Notice of
Motion with new time frames had to be delivered.
[8] This Court, likewise, dismissed this objection and reasons were provided ex
tempore in Court.
[9] This resulted in the First and Second Respondent applying for a postponement from
the bar on the basis that they wish to ask for written reasons to launch an application
for Leave to Appeal. Once again, this Court refused the postponement inter alia on
the basis that reasons were given ex tempore, there is no obligation to provide
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written reasons under the circumstances , and that no substantial application for
postponement was before the Court. Their right to apply for leave to appeal is, after
all, not infringed if the application proceeds on the merits.
[1 O] Consequent ial upon the refusal of the postponemen t, counsel for the Respondents
indicated that he has no instructions to attend to the arguing of the merits of the
matter.
[11] It is apposite to note at this point that it is a generally accepted notion that any
counsel that is briefed to attend to a postponement , must prepare himself/ herself
to address the Court on the merits as well should the postponement not be granted.
Insofar as the matter before Court was in the form of an application, as opposed to
a trial where potential prejudice can ensue if a witness is not called, this Court
directed that the matter proceeds on the merits.
[12] When judgment was reserved in this matter, a further opportunity was provided to
the First and Second Responden ts to deliver supplementary heads by no later than
the 18th of November 2024. To the best of my knowledge, the First and Second
Respondents did not avail themselves of this opportunity. I do not think that the
delivery of Heads of Argument would have taken the matter further.
Factual synopsis:
[13] The Applicants' case is briefly the following:
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13.1 Following representations, the Kgatla Commission recommended to the
Premier, Limpopo Province that the claim of the Siyandhan i Traditional
Community be upheld. This resulted in the Second Respondent being
recognised as a traditional community, and the First Respondent as their
traditional leader with effect from the 2nd of September 2020 as
contemplated in the Limpopo Tradition al Leadership and Institution s
Act, Act 6 of 2005 (the 'LTLIA').
13.2 The territorial area allocated of the Siyandhani Community comprises
Siyandhani Block 19, Jim Nghalume and Mapuve Block 19 (the 'territorial
area').
13.3 The First and Second Respondent refused to accept the recognition and
denomination of territorial areas by the Premier, which resulted in legal
proceedings ensuing between the parties that includes a review of the said
decision.
13.4 Notwithstanding the recognition and allocation of territorial areas being
common cause between the parties, the Third Responden t and certain
other individuals started allocating sites to members of the Siyandhani
Community.
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13.5 As stated herein before, numerous court proceedings ensued between the
parties, some of which are still pending before court. This Court is however
not called upon, or in a position, to determine the outcome of these pending
proceedings.
13.6 During the course of February 2024, it transpired that the First and Second
Respondent and / or persons acting on their alleged authority, were still
actively demarcating stands and allocating same to members of the
community without the approval or consent of the First and Second
Applicant.
[14] An answering affidavit was delivered on behalf of the First and Second
Respondents. Their defence to the interdictory relief claimed, briefly encompasses
the following:
14.1 The decision of the Premier, Limpopo to recognise the community is being
challenged. These legal proceedings are still pending and has not yet been
finalised;
14.2 The First Applicant has been, for a considerable period, a headman under
the auspices of the First Respondent and was responsible for managing the
affairs of all inhabitants of Siyandhani Village;
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14.3 The territorial area forming the subject of the dispute, are existing villages
populated by individuals who owe allegiance to the First and Second
Respondent;
14.4 These villages forms part of the Farm Greater Giyani which is held by the
Minister on behalf of the First Respondent ;
[15] It is clearly common cause between the parties that:
15.1 The First Responden t was formally recognised as the Traditional Leader for
the Siyandani Traditional Community.
15.2 The Second Responde nt was formally recognised as a Traditional
Community; and
15.3 The areas Siyandhani Blok 19, Jim Nghalume and Mapuve Block 19 (the
territorial areas) was formally awarded to the Siyandhani Traditional
Community under leadership of the First Applicant.
15.4 Neither of these decisions has been set aside to date hereof.
Issues that require determination:
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[16] Having regard to the papers filed on record and the brief submissions by Counsel
for the Applicants, it is evident that this Court is called upon to determine if the
Applicants are entitled to the interdictory relief envisioned in the Notice of Motion
and referred to herein before.
The Applicable Legal Principle s:
[17] The Traditional and Khoi-San Leadership Act, Act 3 of 20191 (the 'TKLA') defines
a traditional community as follows:
'traditional community ' means a traditional community recognized as such in
terms of Section 3.
[18] A traditional council is defined as follows2:
'traditional council' means a traditional council contemplated in section 16
and includes a traditional sub-council.
[19] The TKLA defines a traditional leader as follows3:
1 Section 1
2 Section 1
3 Section 1 'traditional leader' means a person who has been recognized as a king or
queen, principal traditional leader, senior traditional leader or headman or
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headwoman in terms of section 8 and includes regents, acting traditional
leaders and deputy traditional leaders.
[20] It is not in dispute that the First and Second Applicants were recognized as
contemplated in Section 3 of the TKLA as respectively a traditional community and
a traditional leader.
[21] Section 1 (1) of the TKLA defines 'area of jurisdiction' as follows:
' ... means the area of jurisdiction defined for a kingship or queenship council,
principal traditional council, traditional council and traditional sub-council '.
[22] Section 1 of the L TLIA defines 'area of jurisdiction' as:
' ... means the area of jurisdiction designated for a traditional community and
traditional council that have been recognized in terms of this Act'.
[23] Again, the allocation and demarcation of the territorial area designated for the
Second Applicant is not in dispute.
[24] The Applicants apply for final interdictory relief. Unlike an interim interdict, that does
not involve a final determination of rights of the parties, a final interdict affects such
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a final determination of rights.4 It is trite law that to succeed with final interdictory
relief, the Applicant must show:
24.1 A clear right;
24.2 An act of interference; and
24.3 No other remedy.
[25] As to a clear right, the existence of the right is a matter of substantive law. Whether
the right is clearly established is a matter of evidence. To establish a clear right,
the Applicant must prove on a balance of probabilities the right which he seeks to
protect.5 In casu the clear right of the Applicants stands undisputed. It is common
cause between the parties that the area was designated for the use of the Second
Applicant.
[26] Having regard to the Opposing affidavit of the First and Second Respondents, they
concede that there has been an interference in the clear right that the First and
Second Applicant holds. Their justification for the interference is premised on the
basis that the decision of the Premier, Limpopo is incorrect and that they are in fact
entitled to govern this area.
[27] What the Respondents fail to appreciate is that administrative action remains valid
until reviewed and set aside by a Court of law. This has not yet been done. And
4 Fourie v Olivier en 'n ander 1971 (3) SA 274 (T)
5 Nienaber v Stucky 1946 AD 1049 at 1053 -4
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until such time as this administrative decision has been reviewed and set aside,
they must abide by the current status quo.
[28] The Applicants have therefore shown that there is an unjustified and unquestionable
infringement in the clear rights that they hold in respect of the designated territorial
area.
[29] It is trite law that a final interdict is a drastic remedy and in the court's discretion.
The court will conseque ntly not grant final interdictory relief if the applicant can
obtain adequate redress in some other form of relief. The Applicant is therefore
obliged to allege, and prove, on a balance of probabilities that he has no other
alternative legal remedy.6 The courts will in general not grant an interdict when the
applicant can obtain adequate redress by an award of damages. 7 In the matter of
Lubbe v Die Administrateur, Oranje-Vrystaat8 the judge refers (at 115) to the fact
that:
' ... daar is geen gevaar dat applikant enige skade wat horn mag toekom, nie
teen die respondent sat kan verhaal nie'.
[30] In casu, this Court is satisfied that the Applicants holds no alternative remedy that
would yield the same, or a similar result. Quite often, territorial disputes in
communities result in public uproar and innocent parties falling victim to
6 Prinsloo v Luipaardsvlei Estates and Gold Mining Co Ltd 1933 WLD 6 at 24 -5
7 Rivas v The Premier (Transvaal) Diamond Mining Co Ltd 1929 WLD 1
81968 (1) SA 111 (0)
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unnecessary violence during the chaos. lnterdictory relief is therefore necessitated
in these circumstances in so far as the members of the community requires certainty
as to their rights and obligations. This is the only appropriate relief under the
prevailing circumstances .
[31] The Applicants are therefore entitled to interdictory relief.
[32] This Court is however concerned as the to prayer pertaining to the demolition of
existing structures. It might very well be that unknown third parties were not made
aware of these proceedings, resulting in potential patrimonial losses being suffered
by such individuals . To avoid any unfairness towards these individuals, this Court
is inclined to grant interim relief in respect of the demolition of the structures only,
coupled with ancillary relief. This will ensure that notice of the intended demolition
is received by the appropriate recipients and that justice is served by providing them
with a reasonable opportunity to present reasons to the above Honourable Court as
to why final relief should not be granted in due course.
Costs:
[33] The Applicants are substantially successful in the relief as prayed for in the Notice
of Motion. As such, there is no reason to deprive them of their costs.
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[34] Having regard to the complexity of the matter and the importance of the case to the
Applicants, costs of two counsel (where so employed ) should be allowed on Scale
B.
Order:
[35] In the result the following order is made:
35.1 The First Respondent and I or the Second Respondent is interdicted
and I or prohibited from allocating plots and I or land and I or stands
in the traditional land placed under the jurisdiction of the Siyandhani
Traditional Community (Siyandhani Blok 19, Jim Nghalume and
Mapuve Block 19) through the services of the Third and I or Fourth
Respondents or any other agent;
35.2 The First Respondent and I or Second Respondent is interdicted and
prohibited from collecting special levy (traditional authority levies)
from residents of the Siyandhani Traditional Community , which
residents reside under the territorial jurisdiction of the Applicant s;
35.3 The Third and I or Fourth Respondents are interdicted and I or
prohibited from allocating plots and I or land and I or stands on behalf
of the First and I or Second Respondents in the traditional land under
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the territorial jurisdiction of the Applicants being Siyandhani Blok 19,
Jim Nghalume and Mapuve Block 19;
35.4 The Sixth Respondent and / or any unlawful occupier of land
belonging to the Siyandhani Traditional Community (Siyandhani Blok
19, Jim Nghalume and Mapuve Block 19) and who have been allocated
such land by the First, Second, Third or Fourth Respondent are
interdicted from utilising the land and to:
35.4.1
35.4.2
35.4.3 Stop building structures on the land;
Stop conducting their business activities on the land; and
Not to trespass on the land and / or use the land without
obtaining permission from the Applicants ;
35.5 The Sixth Respondent and / or any unlawful occupier of land
belonging to the Siyandhani Traditional Community (Siyandhani Blok
19, Jim Nghalume and Mapuve Block 19) and who have been allocated
such land by the First, Second, Third or Fourth Respondent are
ordered and directed to demolish any such structures that they have
already built on the land within a period of 60 (sixty) days from the
date of granting of a final order;
35.6 Prayer 35.5 shall serve as a rule nisi with the return date being
_____________ at 10:00, on or before which date
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any individual contemplated as part of the Sixth Respondent shall be
entitled to submit reasons why the demolition order should not be
made final.
35.7 The Applicants are directed to serve a copy of this order on every
person comprising the Sixth Respondent:
35.7.1
35.7.2 by means of either delivering a copy by hand to the
occupant; and I or
affixing a copy to the said unlawful structure ,
And thereafter to produce an affidavit on or before the return date by
the person that attended to such service on behalf of the First and
Second Applicant.
35. 7 The First and Second Applicant are furthermore directed to publish a
copy of this order once in a local newspaper circulating in the
jurisdictional area designated to the Second Applicant.
35.8 The First and Second Respondents , jointly and severally , the one
paying the other to be absolved , are ordered to pay the costs of the
application , inclusive of the costs of the dismissal of the Counter
Application , on a scale as between party and party, including the costs
of two counsel (where so employed) on Scale B.
APPEARANCES:
FOR THE APPLICANTS
INSTRUCTED BY
FOR THE FIRST AND SECOND
RESPONDENT
INSTRUCTED BY 18
M BRESLERAJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION , POLOKWANE
Adv T Malatji
Adv M Rasesemola
GA Maluleke Attorneys
Giyani
gamaluleke@gmail.com
Adv DD Mtebule
Mohlaba & Moshoana Inc
Nkowankowa A
mohlaba1@mweb.co.za