REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: 2060/2024
(1)
(2)
(3)
REPORTAB LE: ~NO
OF INTEREST TO THE JUDGES: ~NO
RE VISED.YES
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DATE 26 AUGUS T 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
2 ND APPLICANT
1sT RESPONDENT
2 ND RESPONDENT
3 RD RESPONDENT
4 TH RESPONDENT
2
GIDEON FRIDAY SIBUYI 5 TH RESPONDENT
6 TH RESPONDENT OTHER ILLEGAL OCCUPANTS OF THE SIYANDHANI
TRADITIONAL COMMUNITY LAND
Delivered
Date heard
Coram
BRESLER AJ:
Introduction:
26 AUGUST 2025
This judgment w as handed dow n electronically by circulation to
the parties' legal representatives by e-mail. The date and time
for hand dow n of the judgment is deemed to be 26 AUGUST
2025 at 10:00 am.
4 November 2024
Bresler AJ
JUDGMENT
[1] The Applicants apply for interdictory relief against the Respondents in the follow ing
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 Commun ity;
1.2 Interdicting and prohibiting the First and / or Second Respondents from
collecting a special levy (traditional authority levy) from the residents of the
Siyandhani Traditional Commun ity, w hich 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 Siyandhani Traditional Community w ho 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 w ithout obtaining
permission from the Applicant.
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1.5 Costs against any Respondent opposing the proceedings.
[2] The application w as initially enrolled for hearing on the urgent roll on 26 March 2024.
On this day, the matter came before the Honourable Judge Muller. It appears from
the court file that the matter struck from the roll w ith costs. The Rule 30 application
w as dismissed w ith costs.
[3] The Application is opposed by the First and Second Respondents. The First and
Second Respondents also launched a Counter Application for the follow ing relief:
3.1 Declaring that the enrolment of the ma in application is irregular and setting
same aside;
3.2 Dismissing the ma in application w ith costs on attorney and client scale;
alternatively
3.3 Striking the ma in application from the roll w ith costs on attorney and client
scale.
[4] The Counter Application w as premised on the subm ission that the initial order
granted by the Honourable Muller J stated that the main application w as dismissed
(as opposed to struck from the roll). The First and Second Respondents therefore
submitted that the alleged revised order w as irregularly obtained.
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[5] At the hearing of the Application, the First and Second Respondents argued, in line
w ith the Counter Application, that the Application w as irregularly enrolled as it w as
previously dismissed by the Honourable Muller J and on the 26th of March 2024. As
it w as dismissed, it cannot be revived my mere enrolment. This Court how ever
indicated that the order w as clearly varied by the Honourable Judge Muller
personally as the variation of the order (providing that the application w as only
struck from the roll w ith costs) is accompan ied by his signature.
[6] This Court consequently dismissed the first objection raised in the Counter
App lication w ith costs, including costs in respect of two counsels, w here so
employed, on Scale B . Reasons w ere given in court extempo re.
[7] Hereafter the First and Second Respondent raised the objection that the Notice of
Set Dow n fails to comply w ith the provisions of Rule 6(5) in that a new Notice of
Motion w ith new time frames had to be delivered.
[8] This Court, likew ise, dismissed this objection and reasons w ere 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 w ish to ask for w ritten reasons to launch an application
for Leave to Appeal. Once again, this Court refused the postponement inter alia on
the basis that reasons w ere given ex tempore, there is no obligation to provide
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w ritten reasons under the circumstances, and that no substantial application for
postponement w as 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] Consequential upon the refusal of the postponement, 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 Co urt on the merits as w ell should the postponement not be granted.
Insofar as the matter before Co urt w as in the form of an application, as opposed to
a trial w here potential prejudice can ensue if a w itness is not called, this Court
directed that the matter proceeds on the merits.
[12] When judgment w as reserved in this matter, a further opportunity w as provided to
the First and Second Respondents to deliver supplementary heads by no later than
the 18th of November 2024. To the best of my know ledge, the First and Second
Respondents did not avail themselves of this opportunity. I do not think that the
delivery of Heads of Argumen t w ould have taken the matter further.
Factual synop sis:
[13] The Applicants' case is briefly the follow ing:
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13.1 Follow ing representations, the Kgatla Comm ission recommended to the
Prem ier, Limpopo Province that the claim of the Siyandhani Traditional
Community be upheld. This resulted in the Second Respondent being
recognised as a traditional community, and the First Respondent as their
traditional leader w ith effect from the 2nd of September 2020 as
contemplated in the Limpopo Traditional Leadership and Institutions
Act, Act 6 of 2005 (the 'LTLIA').
13.2 The territorial area allocated of the S iyandhani 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 Prem ier, w hich 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 Respondent and certain
other individuals started allocating sites to members of the S iyandhani
Community.
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13.5 As stated herein before, numerous court proceedings ensued between the
parties, some of w hich are still pending before court. This Court is how ever
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, w ere still
actively demarcating stands and allocating same to members of the
community w ithout the approval or consent of the First and Second
Applicant.
[14] An answ ering affidavit w as delivered on behalf of the First and Second
Respondents. Their defence to the interdictory relief claimed , briefly encompasses
the follow ing:
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 w as responsible for manag ing the
affairs of all inhabitants of Siyandhani V illage;
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14.3 The territorial area forming the subject of the dispute, are existing villages
populated by individuals w ho ow e allegiance to the First and Second
Respondent;
14.4 These villages forms part of the Farm Greater G iyani w hich is held by the
M inister on behalf of the First Respondent;
[15] It is clearly common cause between the parties that:
15.1 The First Respondent w as formally recognised as the Traditional Leader for
the S iyandani Traditional Communi ty.
15.2 The Second Respondent w as formally recognised as a Traditional
Community; and
15.3 The areas S iyandhani Blok 19, Jim Nghalume and Mapuve Block 19 (the
territorial areas) w as formally aw arded to the Siyandhani Traditional
Community under leadership of the First Applicant.
15.4 Ne ither 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 subm issions by Counsel
for the Applicants, it is evident that this Court is called upon to determine if the
App licants are entitled to the interdictory relief envisioned in the Notice of Motion
and referred to herein before.
The Applicable Legal Principles:
[17] The Traditional and Khoi-San Leadership Act, Act 3 of 20191 (the 'TKLA ') defines
a traditional commun ity 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 commun ity 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. Un like 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 w ith final interdictory
relief, the Ap plicant 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 ma tter of substantive law . Whet her
the right is clearly established is a matter of evidence. To establish a clear right,
the Ap plicant mus t prove on a balance of probabilities the right w hich 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 w as designated for the use of the Second
App licant.
[26] Having regard to the Op posing affidavit of the First and Second Respondents, they
concede that there has been an interference in the clear right that the First and
Second Ap plicant 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 adm inistrative action remains valid
until review ed and set aside by a Co urt of law. This has not yet been done. A nd
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 adm inistrative decision has been reviewed and set aside,
they must abide by the current status quo.
[28] The App licants 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 w ill consequently not grant final interdictory relief if the applicant can
obtain adequate redress in some other form of relief. The App licant 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 whe n 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 11 5) 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 Co urt is satisfied that the App licants holds no alternative remedy that
wo uld yield the same , or a sim ilar result. Qu ite often, territorial disputes in
comm unities result in public uproar and innocent parties falling victim to
6 Prinsloo v Luipaardsvlei Estates and Gold Mining Co Ltd 1933 W LD 6 at 24 - 5
7 Rivas v The Premier (Transvaal) Diamond Mining Co Ltd 1929 W LD 1
8 1968 (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 App licants are therefore entitled to interdictory relief.
[32] This Court is how ever concerned as the to prayer pertaining to the demolition of
existing structures. It m ight very w ell be that unknow n third parties w ere not made
aw are of these proceedings, resulting in potential patrimon ial losses being suffered
by such individuals. To avoid any unfairness tow ards these individuals, this Court
is inclined to grant interim relief in respect of the demolition of the structures only,
coupled w ith ancillary relief. This w ill ensure that notice of the intended demo lition
is received by the appropriate recipients and that justice is served by providing them
w ith a reasonable opportunity to present reasons to the above Hono urable Court as
to w hy 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 im portance of the case to the
App licants, costs of two counsel (where so employed) should be allow ed 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 Re spondent 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 Applicants;
35.3 The Third and I or Fourth Re spondents 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 Re spondents 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 25
September 2025 at 10:00, on or before which date any individual
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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
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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 OD Mtebule
Mohlaba & Moshoana Inc
Nkowankowa A
mohlaba1@mweb.co.za