THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 470/2023
In the matter between:
MANYAKU MARIA THULARE APPELLANT
and
MORWAMOHUBE ERNEST THULARE FIRST RESPONDENT
THOROMET JANE DEBORAH THULARE SECOND RESPONDENT
THE PREMIER, LIMPOPO PROVINCE THIRD RESPONDENT
THE MINISTER OF CO -OPERATIVE
GOVERNANCE & TRADITIONAL AFFAIRS FOURTH RESPONDENT
THE PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA FIFTH RESPONDENT
LIMPOPO HOUSE OF TRADITIONAL
LEADERS SIXTH RESPONDENT
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Neutral citation: Thulare v Thula re & Others (470/2023 ) ZASCA 100 (7 July
2025 )
Coram: ZONDI DP and KEIGHTLEY and UNTERHALTER JJA and STEYN
and HENNEY AJJA
Heard : 12 May 2025
Delivered : This judgment was handed down elect ronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The time and date for hand -down is deemed to be
11h00 on 7 July 2025.
Summary : Customary Law – Traditional and Khoi -San Leadership Act 3 of 2019 –
Traditional Leadership and Governance Framework Act 41 of 2003 – Limpopo
Traditional Leadership and Institutions Act 6 of 2005 – who constitutes royal family
for purposes of identifying acting king or queen when king dies without a candle
wife and heir – absence of expert evidence on applicable Bapedi custom – matter
remitted to high court for hearing of oral and expert evidence.
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ORDER
On appeal from: Limpopo Division of the High Court, Polokwane (Makgoba J
sitting as court of first instance ):
1 The appeal is upheld with no order as to costs.
2 The matter is remitted to the Limpopo Division of the High Court, Polokwane
for the hearing of oral evidence before a different Judge, excluding any Judge who,
at any stage considered or adjudicated on the disputes between the parties in this
appeal, any of the consolidated app lications, and any other related matter. If
necessary or practicable, the Judge President may set the matter down before a Judge
from another Division of the high court .
3 The following issues, borne out of the dispute between the parties about the
identification of the acting king or queen for the Bapedi Nation in terms of the
Bapedi custom, are referred to oral evidence , including :
a. The question as to what and who, according to Bapedi custom, constitutes the
royal family for purposes of deciding who should be identified as an acting king or
queen in circumstances where the king dies without a candle wife or heir, and in
particular:
i. Who are the immediate relatives of the ruling family?
ii. Who are ‘other family members who are close relatives of the ruling family’?
iii. Whether the common wives of the deceased king form part of the decision -
making structure of the royal family?
b. The process under Bapedi custom in terms of which an acting king or queen
is identified in the circumstances outlined in subparagraph a, above.
c. The role played by seniority and rank in that process and:
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i. whether seniority and rank are determined by genealogy or lineage or both,
and
ii. whether seniority and rank are affected by illegitimacy by birth; legitimacy by
marriage; and subsequent marriage and affiliation to another royal family?
4. The parties may lead expert evidence, and other factual evidence that may be
identified by the high court directly related to one or more or all of the
aforementioned issues.
5. The high court shall issue directives as to the process and timelines that will
apply to the referral to oral evidence, which directives shall provide for the calling
of witnesses, the status of all documents and evidence that form part of the papers
filed in the court a quo to date, and further discovery.
6. The costs incurred in the high court proceedings to date shall be determined
at the conclusion of the hearing of oral evidence.
JUDGMENT
Keightley JA ( Zondi DP and Unterhalter JA and Steyn and Henney AJJA
concurring):
Introduction
[1] This appeal concerns a dispute about the identification of the acting king or
queen of the Bapedi Nation (the Bapedi). On 3 April 2020 the President of the
Republic of South Africa formally recognised Victor Thulare III (Thulare III) as
king of the Bapedi. Thulare III died on 6 January 2021 without having married a
candle wife and, consequently, without an heir to the kingship. All parties to the
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dispute agree that until a candle wife is identified, married by the community , and
an heir born via a seed raiser, an acting king or queen must be identified to serve.
[2] The parties represent two competing camps within the broader Bapedi royal
family. The appellant is Manyaku Maria Thulare (the queen mother ). She is the
mother of Thulare II I and was the candle wife of his father and predecessor, the late
king Rhyne Sekhukhune III. She claims to have been identified as acting queen by
a group of persons she contends are the core royal family. Her identification is
averred to have been made at a meeting on 21 February 2021 and confirmed in a
larger meeting on 9 March of that year. Those attending the 21 February 2021
meeting were confined to Thulare III’s inner circle of six relatives : the queen mother ;
her son, who is unrelated by blood to Thulare III , and was described as a ‘senior
mokgomana; Thulare III’s two non -candle wives ; one of Thulare III’s paternal
uncle s, described as a ‘rangwane and senior mokgomana’ ; and the queen mother’s
daughter and sister of Thulare III , described as a ‘senior kgadi’.
[3] The first and second respondent s represent a competing group, who claim to
be the true royal family . The first respondent is Morwamuhube Ernest Thulare (ME
Thulare) . He is a half -brother of Thulare III , having been born of a non-candle wife
of Sekhukhune III. His legitimacy and descent were disputed by the queen mother .
The second respondent is Thoro metjane Deborah Thulare (TD Thulare), who is a
sister of Sekhukhune III, and hence aunt to Thulare III and ME Thulare. ME Thulare
and TD Thulare aver that at a meeting of members of what they contend to be the
royal family, ME Thulare was identified as acting king and seed raiser. This meeting
took place on 28 February 2021. In attendance at that meeting was a group of 46
persons . It includ ed uncles and aunts of Thulare III, his half -brother s, his brother and
sisters . Some of the attendees were described as bakgomana of the royal family.
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Many were identified by their connection to, or descent from , Thulare III’s father ,
Sekhukhune III.
[4] The dispute over who was legitimately identified as the acting king or queen
spawned no less than five applications in the Limpopo Division of the High Court,
Polokwane (the high court). They were consolidated for hearing before Makgoba JP .
The main applications were twofold. F irst, there was an application by TD and ME
Thulare for a n order declaring that the latter had been lawfully identified as acting
king and seed raiser by a properly constituted meeting of the royal family on 28
February 2021 . The second was a counter -application by the queen mother for an
order declaring that the meeting of 28 February 2021 was not a properly constituted
meeting of the ‘true and correct’ royal family , and that , on the contrary, the decisions
taken on 21 February and 9 March 2021 to appoint her as acting queen were
decisions by the properly constituted true royal family.
[5] The high court found in favour of ME Thulare . It granted the declaratory relief
he sought and dismissed the queen mother’s counter -application. The queen
mother’s application for leave to appeal failed before the high court . On 2 6 April
2023 this Court granted leave on petition. An application by additional parties for
leave to intervene was withdrawn shortly before the appeal was heard . The third to
sixth respondents were cited in their official capacities. None played an active role
in the appeal.
[6] While the dispute between the parties manifests as one concerning who has
been legitimately identified as the acting monarch, its core goes deeper : the more
fundamental question is who is eligible to make that identification ? The answer lies
in both statute and custom.
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[7] Until 1 April 2021 the recognition of kings or queens was governed by the
Traditional Leadership and Governance Framework Act, 41 of 2003 (the Framework
Act). The Framework Act was repealed , with effect from 1 April 2021 , by the
Traditional and Khoi -San Leadership Act, 3 of 2019 ( the TKL Act ). In the ir
applications to the high court t he parties treated the dispute as being governed by the
Framework Act , which was in effect when the contested meetings were held . The
high court cited the TKL Act. For purposes of this appeal it makes no difference
which Act applies, as the amendments effected by the TKL Act are immaterial to
the issues in dispute.
[8] In terms of the statutory framework, where a successor to a throne has not
been identified, it falls to the royal family to identify a suitable person to act as king
or queen ,1 after which, the Premier of the province must extend formal recognition
to him or her.2 Crucial to this appeal is the underlying question: what, and more
precisely who, constitutes the royal family ? ‘Royal family’ is statutorily defined as
being:
‘…the core customary institution or structure consisting of immediate relatives of the ruling family
within a traditional community [or Khoi -San], who have been identified in terms of custom [ary
law or customs] , and includes, where applicable, other family members who are close relatives of
the ruling family .’3
[9] Based on the statutory definition, the high court concluded that it was ‘quite
clear’ the royal family was constituted by Thulare III’s immediate family as well as
other close relatives of the ruling family, including, but not limited to, his paternal
1 Section 13 (1) of the TKL Act, s 14 of the Framework Act.
2 Section 13(4) of the TKL Act , s 14(2) read with s 15 of the Limpopo Traditional Leadership and Institutions Act, 6
of 2005.
3 Section 1 of the Framework Act, with insertions in square brackets introduced by the TKL Act .
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uncles and aunts (being from the house of Sekhukhune III) , his (Thulare III’s) other
siblings, and his half-brothers. It rejected the queen mother’s contention that the
royal family was limited to the inner circle of the six people who had attended the
21 February meeting at which she was identified as acting queen.
[10] The definition does not, without more, identify which relatives fall within the
royal family. What it provides is that this is a question that is determined by the
relevant custom or customary law . While the parties in this case made competing
assertions about who , according to Bapedi custom, constitutes the royal family for
purposes of identifying an acting monarch, they failed to adduce any expert , or other ,
factual evidence to support their assertions and to guide the court in its determination
of the issue .
[11] The high court overlooked this fundamental deficiency . Instead , and despite
the clear material disputes of facts before it, the high court compound ed the problem
by pronouncing what custom required without any primary sour ce of evidence , on
the issue before it . Disputes of this kind require evidence -based resolution. In the
absence of the requisite evidence , the high court was not properly equipped to make
any determination as to who constitutes the royal family. Nor is this Court able to
do so on appeal.
[12] When this problem was raised at the hearing of the appeal, counsel for both
sets of parties accepted that oral, and in all likelihood expert evidence was required
to settle this dispute , and that the prudent way forward was to set aside the order of
the high court and to remit the matter to that court for oral evide nce on the key issues
in dispute. The parties were given the opportunity to discuss and reach agreement,
insofar as they were able, on the issues to be so referred.
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[13] There is consensus that the h eart of the dispute lies in who, in terms of Bapedi
custom, forms part of the royal family with the decision -making power to identify
an acting monarch in circumstances where the king dies without a candle wife or
heir. Is the ‘ruling family’ referred to in the statutory definition, understood by
custom to include only the immediate family of the deceased king, Thulare III, as
the queen mother contends? Or does custom include other close relatives , such as
Thulare III’s paternal uncles, aunts and siblings, as ME Thulare asserts? In either
event, who are th ose family members or relatives ? Are common wives of the
deceased king included ? Is legitimacy a factor under custom? There is also
uncertainty about the process to be followed, as determined by custom, in the
identification process. These are all questions in respect of which the high court will
require the assistance of oral and in all likelihood expert evidence. The order below
is designed to facilitate that process.
[14] The queen mother submitted, in addition, that this Court should make an order
securing her position as acting queen pending the finalisation of the matter by the
high court . It appears from submissions made that prior to the hearing of the appeal
she succeeded in obtaining an ex parte interim order in the high court confirming her
position as acting queen. It was further submitted that the Premier of Limpopo has
issued a certificate of recognition pending the final determination of this appeal. The
Court has also been informed that ME Thulare is opposing the confirmation of th e
interim high court order. According to the queen mother, it is undesirable for the
Bapedi to be left in a state of uncertainty as regards the ir traditional leadership for
an extended period. Her contention is that it would be appropriate for this Court to
provide that certainty by granting its own interim relief.
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[15] I am of the view that it would not be appropriate to accede to the queen
mother’s request. The high court is already seized with the dispute as to what the
interim arrangements should be. Those proceedings have not been finalised and
remain contested. They ought properly to be dealt with by the high court.
[16] The parties were agreed that there should be no order as to costs in respect of
the appeal . This is appropriate given that , although the appeal was successful in part,
there really was no ultimate winner or loser .
[17] I make the following order:
1 The appeal is upheld with no order as to costs.
2 The matter is remitted to the Limpopo Division of the High Court, Polokwane
for the hearing of oral evidence before a different Judge, excluding any Judge who,
at any stage considered or adjudicated on the disputes between the parties in this
appeal, any of the consolidated applications, and any other related matter. If
necessary or pract icable, the Judge President may set the matter down before a Judge
from another Division of the high court .
3 The following issues, borne out of the dispute between the parties about the
identification of the acting king or queen for the Bapedi Nation in terms of the
Bapedi custom, are referred to oral evidence, including:
i. The question as to what and who, according to Bapedi custom, constitutes the
royal family for purposes of deciding who should be identified as an acting king or
queen in circumstances where the king dies without a candle wife or heir, and in
particular:
i. Who are the immediate relatives of the ruling family?
ii. Who are ‘other family members who are close relatives of the ruling family’?
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iii. Whether the common wives of the deceased king form part of the decision -
making structure of the royal family?
b. The process under Bapedi custom in terms of which an acting king or queen
is identified in the circumstances outlined in subparagraph a, above.
c. The role played by seniority and rank in that process and:
i. whether seniority and rank are determined by genealogy or lineage or both,
and
ii. whether seniority and rank are affected by illegitimacy by birth; legitimacy by
marriage; and subsequent marriage and affiliation to another royal family?
4. The parties may lead expert evidence, and other factual evidence that may be
identified by the high court directly related to one or more or all of the
aforementioned issues.
5. The high court shall issue directives as to the process and timelines that will
apply to the referral to oral evidence, which directives shall provide for the calling
of witnesses, the status of all documents and evidence that form part of the papers
filed in the court a quo to date, and further discove ry.
6. The costs incurred in the high court proceedings to date shall be determined
at the conclusion of the hearing of oral evidence.
______________ _____________
R M K EIGHTLEY
JUDGE OF APPEAL
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Appearances
For the appellant: MPD Chabed i SC
M Mazibuko -Mudau
Instructed by: Maluks Attorneys, Sandton
Phats hoane Henney Attorneys , Bloemfontein
For the respondent: G Scheepers SC
N Matidza
Instructed by: Ledwaba Mazwai Attorneys, Pretoria
Fixane Attorneys , Bloemfontein.