1
REP BLIC F SO TH FRl A
IN THE illGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION POLOKW ANE
(1) REPORTABLE SJNO
(2) Of INTEREST TO THEJUDOES :~NO
(3) REVISED '
DATE 7.-:4.\4 ~ 'D~IGNATURE .
In the matter between:
MAMOSHIANE MAGGY MATLALA
SEMANG MATLALA ROYAL FAMILY
SEMANG MATLALA TRADITIONAL AUTHORITY
And
PREMIER OF THE LIMPOPO PROVINCE
MEC FOR CO-OPERATIVE GOVERNANCE
HUMAN SETTLEMENT AND TRADITIONAL
AFFAIRS , LIMPOPO PROVINCE
LIMPOPO HOUSE OF TRADITIONAL LEADERS
KGOSHIGADI PRIMROSE MAPITSI RAHLAGANE CASE NO: 1929/2021
FIRST APPLICANT
SECOND APPLICANT
THIRD APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
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JUDGEMENT
KGANYAGOJ
[1] On 28th May 2007 the applicants made an application to the first respondent in
terms of section 3 of the Limpopo Traditional Leadership and Institutions Act1
(Limpopo Act). The applicants were seeking that the first respondent recognise
Semang Matlala Traditional Community in terms of the Limpopo Act and
appoint the first applicant as a senior traditional leader of the community . The
applicants claim was registered with the Commission on Traditional Leadership
Disputes and Claims (Commission). Before the Commission , the applicants '
claim was disputed by the fourth respondent.
[2] The Commission found in favour of the applicants , and made recommendations
to the first respondent that (i) the claim of the first applicant for her recognition
as acting senior traditional leader of Semang Matlala Traditional Authority at
Lekgwareng be granted; and (ii) the traditional community of Semang Matlala
(Lekgwareng) be recognized in terms of section 2 of Act 41 of 2003 as
amended. On 19th November 2019 the first respondent took a decision to
decline both claims by the applicants , based on the recommendations of the
third respondent. The first respondent failed to provide the applicants with the
reasons for his decision despite requests by the applicants on two occasions .
[3] The applicants have instituted a review application seeking an order to review
and set aside the decision of the first respondent dated 191h November 2019.
1 6 of 2005
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The applicants are further seeking an order that the first respondent be directed
to implement the recommendations of the Commission within 30 days of the
court judgment. The grounds of the applicants ' review application are that the
first respondent was under the statutory duty to implement the
recommendations of the Commission within 30 days after receipt, and that his
failure to do so, contravenes the empowering provisions. The Commission
made its recommendations to the first respondent on 30th June 2014, but the
first respondent took the decision to decline the applicant's claim on 19th
November 2019. According to the applicants it is presumed that the first
respondent took the decision without good reasons, since he had failed to
furnish reasons for his decision.
[4] The applicants submitted that they have instituted their review application during
March 2021 as they were still waiting the first respondent to give them reasons
for his decision, but has failed to do so. The review application was instituted
without the first respondent having furnished them with the reasons for his
decision. The 180 days as a matter of law cannot be said to have to run its
course or to have been exhausted wherein the first respondent has failed to
give any reasons for his decision. From 26th March 2020 to June 2020 there
was a complete lockdown of the country wherein movements of the citizens
were strictly prohibited . During this period the applicants could neither consult
with their legal representatives to take any further step to pursue the matter.
Therefore , there was no unreasonable delay in instituting the review
application.
[5] The fourth respondent has filed a notice to abide, whilst the first to third
respondents (respondents) are opposing the applicants review application . The
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respondents answering affidavit was deposed by Nnana ldah Manamela, the
deputy director: corporate services in the office of the first respondent. In the
answering affidavit the respondents conceded that the Commiss ion had
prepared a report dated 30th June 2014 (first report) in which it recommended
that the applicants claim be accepted. The respondents concede that once the
Commission had made a decision concerning a claim or dispute, it is required
to forward that report to the first respondent who is obliged to implement the
decision. The respondents submit that the first report of the Commission did not
reach the office of the first respondent. (However , the first report formed part of
the record of proceedings filed by the respondents in terms of Rule 53).
[6] According to the respondents , on 21st December 2017 the Commission
completed its second report which was sent to the first respondent. In the
second report the Commission recommended that the claim of the first
applicant for the recognition of the third applicant be referred to the third
respondent. The first respondent referred the report of the Commission to the
third respondent who initiated their own processes by holding interviews with
the affected parties. The third respondent recommended that the claim of the
first applicant as a senior traditional leader be declined. On 19th November 2019
the first respondent notified the applicants that he had considered the findings
and recommendations of the committee of the third respondent and has
decided to decline the applicants claim. The respondents have also raised
several points in limine which they have abandoned at the commencement of
the hearing of this matter.
[7] Counsel for the respondents have filed heads of argument for first and second
respondents only. Before this court, counsel for the respondents conceded that
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the process which the third respondent took on receipt of the report by the
Commission from the first respondent is not allowed and provided for in the
Limpopo Act and Traditional Leadership and Governance Framework Act2
(Framework Act). The Framework Act was replaced by the Traditional and Khoi­
san Leadership Act3. However, at the time when the claim was lodged,
investigated and Commission completed its reports and sent them to the first
respondent , the applicable national legislation was the Framework Act. Counsel
for the respondents further conceded that the third respondent had acted
outside the powers conferred to it in terms of section 30 of Limpopo Act, but
that the applicants have failed to review and set aside the second report of the
Commission. Counsel for the respondents had submitted that the proper order
to be granted was to remit the matter back to the first respondent for
reconsideration .
[8] The applicants have instituted their review application in terms of the Promotion
of Administrative Justice Act4 (PAJA) seeking to review and set aside the first
respondent 's decision dated 19th November 2019 where the first respondent
had declined the applicants' claims of the first applicant as the acting senior
traditional leader of the third applicant, and also the recognition of the traditional
community of Semang Matlala (Lekgwareng) . The question to be decided is
whether the decision of the first respondent to decline the applicants ' claims
was procedurally unfair or is not rationally connected to the information that was
before him, and must therefore be reviewed and set aside.
2 41 of 2003
3 3 of 2019
4 3 of 2000
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[9] It is not in dispute that on 28th May 2007 the applicants have made an application
for the recognition of a traditional community as well as the recognition of the
first applicant as the acting senior traditional leader of Semang Matlala
Traditional Authority at Lekgwareng . It is also not in dispute that on receipt of
the application , the first respondent referred the applicants' application to the
Commission . In terms of section 25(1) of the Framework Act the Commission
had authority to investigate and make recommendations on any traditional
leadership dispute. The Commission had also powers to investigate disputes
or claims concerning senior traditiona l leadership in accordance with customary
law and customs, either upon request or of its own accord.
[1 O] In terms of section 26(2) of the Framework Act, the Commission must convey its
recommendat ions to either the President and Minister or the relevant provincial
government within two weeks of making the recommendations . In terms of
section 30 of the Limpopo Act, the first respondent must within seven days of
receipt of the decision of the Commission refer such decision to the provincial
house of traditional leaders for its advice on implementat ion. The provincial
house must submit its advice within fourteen days to the first respondent , and
thereafter the first respondent must implement the decision of the Commission
within thirty days of receipt of such decision from the Commission . The decision
referred in the Limpopo Act will refer to recommendations referred to in the
Framework Act.
[12] On 30th June 2014 the Commiss ion send its first report containing its decision
to the first respondent. According to the respondents ' answering affidavit, the
first respondent did not receive the Commission 's first report, but had received
the Commission 's second report dated 17th Decembe r 2017, which is the report
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that the first respondent had acted on. However, it is surprising that the
respondents when they filed the record of the proceedings in terms rule 53(3),
they have filed the same first report which the allege that it did not reach the
office of the first respondent. No explanation was given how they got hold of
that report and what prevented that report from reaching the office of the first
respondent. Since the respondents were able to file the first report as part of
the record of the proceedings in terms of rule 53(3), without any explanation,
the only inference to be drawn is that the report has been in their possession
from the time the Commission had delivered it to them, and they deliberately
ignored it and not acted on it.
[13] Section 30 of Limpopo Act is clear on how the first respondent should implement
the decisions of the Commission on receipt of them. The first respondent is
required to refer the decision of the Commission to the house of traditional
leaders for its advice on implementation. The section uses the word "must"
which makes it peremptory for the first respondent and the house of traditional
leaders. The role of the house of traditional leaders on this issue is limited to
giving advice on the implementation of the decision of the Commission and not
to re-open the process and hear the submissions afresh like they did in the
current matter regarding the second report. The process which the house of
traditional leaders has followed on receipt of the second report is not provided
for in either the Framework Act or the Limpopo Act. The house of traditional
leaders has given themselves the powers which they did not have and have
therefore acted beyond their powers.
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[14] In Langa v Premier, Limpopo and Others 5 the court said:
[15) ... And this where section 30 of the Limpopo Act come in. The section, which is headed
"Implementation of decisions of the commission ", requires the first step, that the Commission 's
recommendations be referred to the Provincial House for its advice on implementation.
[16] Together, section 26 of the Framework Act and section 30 of the Limpopo Act empower
the Premier to take a decision on a recommendation made by the commission and to implement
that recommendation , provided the requirements of each provision are met".
[15] Once the requirement of each provision is met, the first respondent is obliged to
implement the recommendations of the Commission by using his discretion to
either implement or decline the claim. When he declines the claim, he is obliged
to give reasons to the affected parties for that, of which he had failed to do in
the case at hand despite several requests. From the respondents ' own
evidence which is the record of the proceedings filed, the first report of the
Commiss ion has been in possession of the respondents. The respondents have
failed to give an explanation as to which of the provisions has not been met
which empowers the first respondent not to implement the recommendations of
the Commission as contained in the first or second reports. It is not open to the
first respondent to hand pick which report to implement without giving sound
reasons.
[16] Even if this court was to accept that the first respondent was correct in acting
on the second report, the second report recommended for the acceptance of
the applicant's claim, and recommended that the claim of the applicants be
referred to the Limpopo Provincial House of Traditional Leaders. The first
respondent duly referred the second report to the house of traditional leaders
5 [2021] ZACC 38; 2022 (3) BCLR 367 (CC) (5 November 2021) at paras 15 and 16
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where the house traditional leaders reopened the process by making
consultation with the Kotule Royal Family. The house of traditional leaders
came to the findings that contradict the findings of the Commission. Based on
their findings, the house of traditional leaders recommended to the first
respondent that the claim of the of the first applicant be declined. The first
respondent acted on the basis of the recommendations of the house of
traditional leaders and declined the applicants claim.
[17] As stated in section 30(1) of the Limpopo Traditional Act, in this regard, the role
of the provincial house of traditional leaders was limited to give advice to the
first respondent on the implementation of the Commission 's report and not to
reopen the process afresh. By reopening the process afresh, making their own
investigation , findings and recommendations , the provincial house of traditional
leaders have acted beyond the powers given them by section 30. They house
of traditional leaders have given themselves the powers which they did not
have. If the house was unhappy with the report of the Commission , the proper
route to follow was to bring an application for the review of the Commiss ion's
report which they have failed to do.
[18] The recommendations of the house of traditional leaders was therefore flawed
as it was not taken as empowered by the Limpopo Act or any other legislation .
Since the first respondent has acted based on the flawed recommendations
from the house of traditional leaders, the decision of the first respondent to
decline the applicant's claim was not rationally connected to the information that
was before him as contained in the Commission 's reports. On that point alone
the first respondent's decision to decline the applicant's claim stands to be
reviewed and set aside.
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[19] The first respondent did not consider the Commission 's first report without any
justifiable reasons. The first report was also not referred to the house of the
traditional leaders for their advice on its implementation. The flawed report of
the house of traditional leaders was based on the Commission 's second report,
and I doubt whether the house of traditional leaders was aware of the existence
of the first report. It will therefore be just and equitable to remit the matter back
to the first respondent in order to refer the first report to the provincial house of
traditional leaders for their advice on how to implement the Commission 's
report, and also for the house of traditional leaders to act within the powers
vested in it.
(20] In the result the following order is made:
20.1 The decision of the first respondent dated 19th November 2019 wherein
he declined an application for recognition of the applicants ' claim in terms of the
Traditional Leadership and Governance Framework Act, 2003 (Act No 41 of
2003) is hereby reviewed and set aside.
20.2 The matter is remitted back to the first respondent to refer the first report
of the Commission to the provincial house of traditional leaders and the relevant
local house of traditional leaders for their advice on implementation of the
Commission 's report in terms of section 30( 1) of the Limpopo Traditional
Leadership and Leadership and Institutions Act 6 2005.
20.3 In all further decision-making in the matter the provisions of the Traditional
and Khoi-San Leadership Act 3 of 2019 must be taken into account.
20.4 The first and second respondents to pay the applicants costs on party and
party scale B.
APPEARANCES: KGANYAGOJ ~
JUDGE OF THE H lGH COURT OF SOUTH
AFRICA , LIMPOPO DIVISION,
POLOKWANE
: Adv CT Malatji 11
Counsel for the applicant
Instructed by
Counsel for 151 & 2nd respondents
Instructed by : Makgoba Kgomo Makgaleng Inc
: Adv S Mathabathe
Date heard
Electronically circulated on : State Attorney, Polokwane
: 6th March 2025
: 29th April 2025