REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
(1)
(2)
(3) REPORTABLE: NO
OF INTEREST TO THE JUDGES : NO
REVISED.
DATE, ID JUNE 2025 SIGNATURE ~ ····
In the matter between:
BAROKA BA NKWANA ROYAL FAMILY
SAVIOUR LEGADIMANE PHASHA
MACDONALD PHASHA
AND
PREMIER, LIMPOPO N.O
MEC COGHST A N.O LIMPOPO PROVINCE
PATRONELLA MAMASEGARE PHASHA
BAKONE PLATINUM MINE (PTY) LTD
SAMANCO MINE (PTY) LTD CASE NO: 6634/2024
FIRST APPLICANT
SECOND APPLICANT
THIRD APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
· THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
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JUDGMENT
MANGENAAJ
[1] Baroka Ba Nkwana Royal Family is a family in turmoil. Nothing demonstrates this
state of affairs than the number of years it has taken the family to agree on the
name of the person to be appointed a Senior Traditional Leader of Baroka Ba
Nkwana Traditional Community.
[2] Makgoba JP chronicled ''the relatively long and controversial history of litigation in
the Baroka Ba Nkwana Community " in case number 2654/2016 dating back to
the period shortly after the death of Kgoshi Nkwana Aubrey Phasha who died in a
car accident in 2003. Twenty-two years later, the dispute is still crying for resolution
in the hallowed chambers of the Limpopo High court.
[3] The Applicant brought an application in two parts, praying for the following orders;
PART A
(a) Suspending the operation and execution of the recognition certificate granted
by the Honourable former Premier of Limpopo Province Mr Chupu Stanley
Mathabatha on or about 04 June 2024 in terms of Rule 45A pending the
determination by court of Part-B (Review application ).
(b) Interdicting and restraining the 1 st and 2nd Respondents from coronating the
3rd Respondent as the Senior Traditional Leader of Baroka Ba Nkwana
Traditional Authority.
PARTB
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(a) Directing that the Recognition certificate issued by the Premier of Limpopo
Province Mr Chupu Stanley Mathabatha on 04 June 2024 recognising (Ms)
Patronella Mamasegare Phasha as Senior Traditional Leader of Baroka Ba
Nkwana Traditional Community be reviewed and set aside.
(b) Directing the Premier of Limpopo Province to withdraw the recognition certificate
issued and recognising (Ms) Patronella Mamasegare Phasha as Senior
Traditional Leader of Baroka Ba Nkwana Traditional Community.
(c) Directing the Premier of Limpopo Province to issue the recognition certificate to
(Mr) Saviour Legadimane Phasha recognising him as Acting Senior Traditional
Leader of Baroka Ba Nkwana Traditional Community within 60 days from the date
of this order.
[4] There are other ancillary orders prayed for both in part A and B. This judgment
relates only to part A which was initially launched as an urgent application for
hearing on 09 July 2024. It was struck off the roll with costs and came before on a
normal opposed motion roll.
[5] When the matter was called, counsel for the third Respondent raised issues
relating to the service of set-down and urged me to remove the matter from the roll
on the basis that his office was not properly served with a set-down. He fell short of
imputing impropriety on the part of the applicant's attorneys of record to the effect
that they have forged his office stamp. In support of his contention, he submitted
that the practice in his office is that the person receiving the documents appends
his/her signature on the document in addition to the date stamp. The set-down in
the court file did not have a signature of the person who received it.
[6] The applicant's counsel remain steadfast in his submission that the matter was
properly enrolled and the set-down was served on the third Respondent's
attorneys. He was ready to call the attorney into the witness box to testify on this
aspect. I found this to be unnecessary as I was satisfied that there has been proper
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notice of set-down and that it was in the interests of justice that the matter be
heard. The matter was rolled over for argument on 16 May 2025 at 14h00 in order
to afford the third Respondent's counsel an opportunity to prepare himself.
[7] When the matter was called on the 16 May 2025, Counsel who appeared on the
15th did not come to court and instead sent Adv Makosha who sought to once
again argue for the postponement of the matter on the basis that it was not properly
enrolled. I declined the request for the postponement and re-affirmed the
correctness of the decision I made the previous day.
BACKGROUND
[8] As it appears from the prayers, the Premier of Limpopo recognised Ms Patronella
Mamasegare Phasha as a Senior Traditional Leader of Baroka Ba Nkwana
Traditional Community on the 04 June 2024.
[9] The Applicants are unhappy with this recognition and want to have it reviewed and
set aside. Pending the review they would like to have the recognition suspended
and have the second Applicant, Mr Saviour Legadimane Phasha appointed as
an Acting Senior Traditional Leader.
[1 O] The basis of the Applicants contention is that there is an existing court order issued
by Rabie J on the 26 July 2010 declaring the persons listed on pages 16 and 17 of
the Geneologica l report of Prof Sekgothe Mokgoatsana dated 28 April 201 O the
rightful Bakgoma of the Baroka-Ba Nkwana Tribe. The court order further declared
the listed persons "to be the sole and exclusive decision making body with powers
to run the tribal affairs of the Baroka-Ba Nkwana Tribe.
[11] Acting in accordance with the court order, the listed persons convened on 19 June
2022 and identified Mr Saviour Legadimane Phasha to be the Senior Traditional
Leader of the Bakgoma -Ba Nkwana and Baroka Ba Nkwana Traditional
Community. The resolution was dispatched to the Limpopo Provincial Government
through the Department of Co-operative Governance , Human Settlements and
Traditional Affairs for processing.
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[12] The resolution was never processed despite numerous follow ups and agitation by
the Applicants. This is so because there is no unanimity as to who constitute the
Royal family, hence "parallel" structures. I interpose to indicate that I was informed
during the hearing of this application that there is another group which has applied
to intervene as the "real" royal family. This is despite the order of Rabie J which
remains extant until reviewed and set aside.
[13] The application is opposed by the third Respondent , Ms Patronella Mamasegare
Phasha who vehemently denies that the persons whose names appear on Rabie
J's order constitutes the royal family. She further states that whilst it is true that
Bakgoma are empowered to identify the senior traditiona l leader, they are required
by law to promote the principles enshrined in the Bill of Rights which requires
equality of treatment, prevention of unfair discrimination as well as advancement of
gender representation in the succession to traditional leadership positions.
[14] She alludes to the fact that she is the only child of the late Kgoshi Aubrey Phasha
and his candle wife Ms Tlakale Mavis Phasha. That she is a woman cannot be
used as the basis to preclude her from ascending to his father's crown. She
therefore defends the Premier's decision and prays for the dismissal of the Part A
application.
[15] The regulatory framework governing the appointment of traditional leadership in
Limpopo involves two stages. The first stage is the identification stage where the
royal family must, whenever a position is to be filled, identify a person for that
leadership role in terms of customary law and custom. The second stage is the
recognition stage where the royal family submits the particulars of the identified
person to the premier of that province. See Netshimbupfe and Another v
Carthcart and Others, [2018] 3 ALL SA 397 (SCA) at paragraph 8; Chief
A vhatendi Ratshibvumo Rambuda and Others vs Tshibvumo Royal Family and
Others, 2024 (1) BCLR 1376(CC) at paragraph 51.
[16] The body with full authority to identify a person for recognition as a traditional leader
is the royal family. The premier is obliged to act in accordance with the dictates of
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the royal family unless such identification was not made in line with customary law
and processes in which event he or she will be required in the exercise of his/her
discretion to either refer the matter to the provincial and local houses of traditional
leaders or to refuse recognition.
[17] Upon receipt of the conflicting resolution from the royal family, the premier referred
the matter to the provincial and local house of traditional leaders for investigation.
[18] The committee conducted the investigation and compiled a report after consulting
with all the affected parties. The committee also took into account the litigation
history since the passing away of Kgoshi Aubrey Phasha including the 2010 court
order of Rabie J which is still in force because it has not been set aside. The
committee recommended that Ms Patronella Mamasegare Phasha be considered
for the position of senior traditional leadership in line with the Baroka Ba Nkwana
Customary Law of Succession and as well as the Constitution Act 108 of 1996
which mandates gender equality.
[19] Acting on the recommendations of the investigative committee , the premier as the
ultimate recognition authority appointed Ms Patronella Mamasegare Phasha as
the senior traditional leader of Baroka Ba Nkwana Traditional Community.
[20] The act of appointment and recognition of Ms Petronella Mamasegare Phasha as
a Senior Traditional Leader of the Baroka Ba Nkwana by the Premier constitutes an
administrative act as defined in PAJA and therefore susceptible to review and set
aside if the court adjudicating on part B finds sufficient grounds to do so. I am
however not called upon to review the Premier's decision. This will be done later
when all interested and affected parties have joined the fray and the full record of the
decision is at hand.
[21] In part A, applicants seek an interim relief pending review. To succeed, they need to
satisfy all the requirements set out in Setloge/o v Setloge/o, 1914 AD 221 as well
as Webster v Mitchell, 1948(1) SA 1186 (WLD), namely a prime facie right even if
open to doubt, apprehension of irreparable harm, if the interdict is not granted, the
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balance of convenience favourable to the grant of the interdict and the absence of
any other remedy.
[22) The proper approach to adjudicate on applications for interim interdicts was
expressed with cogency and absolute clarity in Webster v Mitchell, as follows: -
"In the grant of a temporary interdict, apart from
prejudice involved, the first question for the court is
whether, if interim protection is given, the applicant
could ever obtain the rights he seeks to protect.
Prima facie that has to be shown. The use of the
phrase "prima facie established though open to
some doubt" indicates that more is required than
merely to look at the allegations of the applicant, but
something short of a weighing up of the
probabilities of conflicting versions is required. The
proper manner of approach is to take the facts as
set out by the applicant, together with the facts set
out by the respondent which the applicant cannot
dispute, and to consider whether having regard to
the inherent probabilities the applicant could on
those facts obtain final relief. The facts set up in
contradiction by the respondent should then be
considered . If serious doubt is thrown on the case
of the applicant, he could not succeed in obtaining
temporary relief'.
[23] The applicants have interest in the affairs of Baroka Ba Nkwana and are within their
rights to approach the court whenever their interests or rights are threatened.
[24] The Constitution al court has however ruled that the right to approach the court for an
interim relief is circumscribed . In National Treasury and Others v Opposition to
Urban Tolling Alliance and Others, 2012(6) SA 223(CC), Moseneke J said that:-
"the prima facie right a claimant must establish is
not merely the right to approach a court in order to
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review an administrative decision. It is a right to
which, if not protected by an interdict, irreparable
harm would ensure. An interdict is meant to
prevent future conduct and not decisions already
made."
[25] The Premier has already proclaimed the third respondent a Senior traditional leader
and gazetted her name. The applicants seek an order to suspend the operation of a
decision which has been effected and the rights consequential to that decision are
already vested. As in Outa, I do not think the right to review the decision by the
Premier requires any preservation pendente lite.
[26] One of the critical requirements for an interim interdict is that the applicant must
demonstrate an apprehension of irreparable and imminent harm occurring in the
event the order is not granted. This will mean that the effects of the harm will not be
repaired or reversed by the subsequent order(s) made.
[27] I fail to see how the favourable outcome of the review if continued with, will not be
able to reverse the harm that the applicants allege that they will suffer as a result of
the appointment of the third respondent. Whilst they may believe in the strength of
their case, it is not a foregone conclusion that the decision by the premier will be
reversed. In that case, how do they hope to compensate the third respondent for the
loss she would have suffered. They are dealing with this aspect in their papers and
as I see it the balance of convenience favours the third respondent.
[28] The applicants prayer for the appointment of Mr Saviour Legadimane Phasha as
the Acting Senior Traditional Leader in the face of the averments by his mother that
he is unsuitable for such an acting appointment fortifies my view that the premier
may have acted rationally in recognizing the third respondent as the senior
traditional leader. Her appointment followed a process prescribed in Section 12(2)
of the Limpopo Traditional Leadership Act as there was indeed evidence
presented to him that the identification of Mr Legadimane Saviour Phasha was not
done in line with customary law, customs or processes. I however express no firm
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view on the legitimacy of the "royal family'' that initially recommended her. This is
what is to be determined by the review court.
[29] Regarding the remainder of the requirements , I am of the view that the balance of
convenience favours the third respondent whose recognition was made by an
appropriate authority and her rights as a senior traditional leader have already
vested. The applicants have an alternative remedy in the form of the pending review.
In National Treasury and Others v Opposition to Urban Tolling Alliance and Others,
2012 (6) SA 223 (CC) Moseneke DCJ, cautioned against the violation of separation
of powers when considering the granting of interim orders. He said:-
"A courl must also be alive to and carefully
consider whether the temporary restraining order
would unduly trespass upon the sole terrain of
other branches of government even before the
final determination of the review grounds. A
courl must be astute not to stop dead the
exercise of executive or legislative power before
the exercise has been successfully and finally
impugned on review. This approach accords well
with the comity the courls owe to other branches
of government provided they act lawfully". para
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[30] With the above said, I conclude that the applicants have failed to make out a case
for the relief they seek in part A of their application.
[31] Consequently, I order as follows: -
31.1 The application is dismissed with costs on a party and party scale B of the High
Court which costs includes that of Counsel.
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APPEARANCES M.I. MANGENA AJ
E OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
FOR APPLICANT MAKGOBA KGOMO MAKGALENG INCORPORATED
FOR RESPONDENTS ADVOCATE T.D SIBIYA
HEARD ON 16 & 17 MAY 2025
DELIVERED ON 10 JUNE 2025