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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: HCA 36/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 18/09/2025
SIGNATURE:
In the matter between:
MAHLASE, JAMES MORUTI APPELLANT
and
MAHLASE, JOHN TSHETLOANE RESPONDENT
ORDER
On appeal from Nebo Magistrate's Court, District of Makhuduthamanga,
Limpopo (MJ Ramped sitting as court of first instance):
1. The appeal is upheld.
2. The order of the Nebo Magistrate's Court, District of Makhuduthamaga is set
aside and replaced with the following:
a. The Appellant will be allowed to enter the premises situated at number
9[…] Matshollela (Village) Section, Ga -Marishane, Limpopo from 08H00 -
17H00 on weekdays and this will be for the Appellant to use as a Dental
practice only.
b. The Respondent will be allowed to use the property known as number
9[…] Matshollela (Village) Section, Ga -Marishane, Limpopo as his residential
home.
3. The Respondent is ordered to pay the costs of the appellant in this Court on
scale "B" as well as in the Nebo Magistrate's Court.
JUDGEMENT
Stroh AJ (Naude-Odendaal J concurring):
Introduction
[1] The first question to be answered is: when may a High Court set aside the
whole judgement of the lower court and make its own decision?
Second question: May a Court on appeal invoke the Constitution of the Republic of
South Africa, 1996 (hereinafter "the C onstitution") and more specifically section 172
(1) (b) of "the Constitution" which confers on this Court a wide discretionary power to
make an order that is just and equitable?
[2] I must emphasize that the application by the Appellant in the Magistrate C ourt
was in respect of the Domestic Violence Act 116 of 1998 (hereinafter "the Domestic
Violence Act") however in this appeal, the main consideration is that of the
Appellant's and Respondent's rights in terms of "the Constitution".
Background
[3] The App ellant is the biological son of the Respondent. On the 28 th of
November 2023, the Appellant obtained an Interim Order against the Respondent
not to commit any of the following acts: to wit, assault, threaten, to harm or kill the
Appellant and not to dama ge the property known as number 9 […] Matshollela
(Village) Section, Ga Marishane, Limpopo.
[4] On the 19th of February 2024, the return date of the Appellant's Interim Order,
the Respondent obtained an Interim Order against the Appellant after submitting a
counter-application in terms of the Domestic Violence Act. In the court a quo the
proceedings started with an application by the Appellant but ended up with both
parties also leading oral evidence (viva voce) in the Application. Oral evidence was
led after both parties filed the necessary Answering Affidavits and Replying Affidavits,
respectively. The Appellant testified and called three (3) witnesses, and the
Respondent testified on its own.
[5] On the 1 st of August 2024, the court a quo dismissed the Inte rim Order that
was granted in favour of the Appellant and granted an Interim Order for the counter
application in favour of the Respondent. The Order in the court a quo reads as
follows:
" Moruti James Mahlase is Prohibited from committing the following a cts of
Domestic Violence: Assaulting, Threatening John Mahlase
Damaging property of the Respondent John Mahlase: Threatening
Respondent Entering no 9[…] Matshollela (Village) Section, GaMarishane" 1
[6] The Appellant was not satisfied with the decision of the Magistrate in the court
a quo, applied for leave to appeal and leave to appeal was granted to this Court.
1 Court A Quo Bundle on page 314, Volume 4 of 4
[7] In general, the Domestic Violence Act restricts the Constitutional rights of an
individual and that being the reason why the individual's Const itutional rights (as
found in "the Constitution") is relevant and discussed in this judgment.
[8] This matter relates to section 9 of "the Constitution" that states:
"Everyone is equal before the law and has the right to equal protection and
benefit of the law."
[9] When relying on the applicability of "the Constitution" and the rights contained
therein, such as section 9 of "the Constitution", there are reasonable prospects for
success in this matter. "What the test of reasonable prospects of success post ulates
is a dispassionate decision, based on the facts and the law. That a court of appeal
could reasonably arrived at a conclusion different to that of the trial court." 2 The
interest of justice dictates that the question be finally and authoritatively determined
by this Court.
[10] The answer to this question must surely turn on the interpretation of "the
Constitution". In this regard section 2 of the Constitution states that:
"This Constitution is the supreme law of the Republic, law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be
fulfilled."
[11] Another important section to consider is section 36 of "the Constitution" that
refers to the l imitation of one's constitutional rights. Section 36 of "the Constitution"
states:
"(1) The rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account all relevant factors, including;
2 S v Mabena & another 2007 (1) SACR 482 (SCA) para 22
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2): Except as provided in subsection (1) or in any other provisions of the
Constitution, no law may limit any right entrenched in the Bill of Rights."
[12] Before this Court deals with the merits of the appeal, we consider it necessary
to underpin the very notion of whom fundamental rights are meant to protect. The
creation of fundamental rights was about the protection of human beings , and we
find the expression in Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa , 1996 [1996]
ZACC 26 (6 September 1996) (hereinafter the 'First Certification Judgment' ). In the
First Certification Judgement the Constitutional Court said:
"The movement to recognize and protect the fundamental rights of all human
beings gained increased momentum in the international arena from the
Second World War. In 1945, the Charter of the United Nations was signed.
Among its aims were the achievement of 'international co -operation in
promoting and encouraging respect for human rights and for fundamental
freedoms for all' (article 1(3)). This ambition was give n voice by the 1948
Universal Declaration of Human Rights ('UDHR'). Then in 1966, in order to
give these rights the binding force of international obligations, the General
Assembly of the United Nations adopted the International Covenants on Civil
and Poli tical Rights and on Economic, Social and Cultural Rights ('ICCPR'
and 'ICESCR'). The adoption of the UDHR led also to the drafting of regional
instruments such as the European Convention on Human Rights and
Fundamental Freedom in 1951, the European Charter in 1961, the American
Convention on Human Rights in 1969 and the Banjul Charter on Human and
Convention on Human Rights in 1969 and the Banjul Charter on Human and
Peoples' Rights in 1981. These developments in the international spheres
were mirrored in various national constitutions, many of which now contain
bills of rights."
Applicant's Submission in this Court
[13] It was argued by counsel for the Appellant and contained in his heads of
argument - The Magistrate erred and misdirected himself on the facts when he found
that the evidence of the Traditional Council Members confirmed that the Appellant
and the Respondent cannot live together under one roof or at stand number 9 […],
Matshollela (Village) Section, Ga-Marishane, Limpopo Province.
[14] The Argument by counsel for Appellant is clear from the evidence of
Makgotlane Marishane, a member of the Royal Family and Traditional Council in the
court a quo, as appears hereunder.3
"Mr Marishane: It is so in our indigenous laws that the lastborn son will be the
rightful owner. They even came to the Royal House to discuss the said matter
and we indeed got a resolution on that."
[15] The evidence of Mr Makgotlane Marishane 4 under cross -examination
confirms the submission and argument of Appellant's counsel:
"Mr Aggenbag: That is my question Your worship. How did the Traditional
Council resolve the matter?
Mr Marishane: That they should live together harmoniously as the homestead
belongs to both of them."
"Mr Aggenbag: "Okay. Do you agree that the son, Applicant in the matter and
his father, the Respondent in the matter, struggles to live together on the
same residence?"
"Mr Marishane: "I do not agree to that."5
[16] Another one of the submissions made by the Appell ant counsel was that the
Magistrate failed to analyse the evidence critically and holistically and therefore erred
3 Appeal Bundle: Volume 3 of 7, paginated page 224, lines 20-23:
4 Appeal Bundle: Volume 3 of 7, pages 237, lines 22-25, page 242, lines 12-14
5 Appeal Bundle: Volume 3 of 7 page 242, lines 12 to 14
in finding that the Respondent's evidence was: " that the Appellant came with a crow
bar and the Respondent came with an axe".
I find the App ellant argument correct since in the Court a quo, the Magistrate said:
"The Applicant mentioned that Respondent once wanted to hit him with axe when the
Applicant has come to fix a door at Applicants home and Applicant had to defend
himself with a crowbar."6
[17] The Appellant submitted that the finding of the Magistrate in the Court a quo
was only based on the evidence given by the Respondent without considering the
evidence given by the Appellant: 7 The evidence of Appellant in the court a quo was
and I quote:
"Mr Mahlase: explained, I do not know where he was coming from. Whether
he was coming from the house or the side of the surgery, he approaches,
holding a crowbar in hand then he says to me, today I am going to kill you. So,
out of fear, I stood up ran out of the yard. Leaving the yard I even sprained my
leg where I sustained an injury. This is why I am using a walking stick. It was
since the day that I sustained those injuries that I have been using this stick.
Had he been able to catch me that day, so mething bad would have happened.
As I was outside the yard, standing there, he was standing next to his car and
then he had the crowbar placed in the boot of his car. As I tried to [indistinct]
towards getting back into the yard, he says to me that, if y ou try and come
and even take two steps, I am going to kill you. I stood there watching and
there were people there inside the garage. I do not know what they"
Mr Mahlase: were doing there exactly. Once they were done in the garage ,
they left. I do not know these people. He said to me you can now enter. I
proceeded to enter the yard. As I was walking, I looked at him so that I can
see what he was doing. In my mind I was going to walk and get into the room.
If he follows me and tries to do something I will see what I will do when I am
If he follows me and tries to do something I will see what I will do when I am
there. I entered the house. Upon entering the house I went and took my axe
and I held it, or I put it around my waist and then I went and stood at the
6 Court a Quo Bundle on page 313, Volume 4 of 4 and more specifically paragraph 7
7 Appeal Bundle: volume 4 of 7, paginated pages 394, lines 10-25; paginated pages
395, lines 1-17; and paginated pages 396, lines 1-10.
fairway. Standing there his employees went out and g ot into the car. He also
then proceeded to enter the car and reversed the car a bit. Seeing that I was
standing there, he came and approached me with that car. He got out of the
car, went and took the crowbar and came next to me. It was at that point
when I said to myself I .. .[intervene] .. .[indistinct] Then I took out the axe and
I threatened him with the axe."
"Mr Mahlase: that I was standing there looking at him. He drove by a bit then
he came out of the car and he was holding his crowbar. He then cam e next to
me. When he came nearer, I also produced the axe. When he was trying to
come closer to me, at that point when I produced the axe, he tried to go back
a bit. This is when he slipped. So now in that moment there was a person
Phaleng, they had alrea dy got a hold of that axe of mine. When they took
away the axe from me, he proceeded to get into the car. Then they gave back
my axe after he got into his car and they all left.".
[18] It is the Appellant's submission - and I quote from his Heads of Argume nt -
that "Clearly the Magistrate misdirected himself on the factual finding in his
judgment."
Applicable Law and Case law relevant in this judgment
The Constitution of the Republic of South Africa
In my view the following sections are important for disc ussion in this judgment as
well as the following case law:
[19] Section 2 of "the Constitution":
"This Constitution is the supreme Jaw of the Republic, Jaw or conduct
inconsistent with it is invalid, and the obligations imposed by it must be
fulfilled."
Important words contained in this section of "the Constitution" are "supreme law''.
[20] Section 9 of "the Constitution":
"Everyone is equal before the law and has the right to equal protection and
benefit of the law."
Important words contained in this section of "the Constitution" are "everyone" and
"equal".
[21] Section 36 of "the Constitution":
"(1) The rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account all relevant factors, including;
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2): E xcept as provided in subsection (1) or in any other provisions of the
Constitution, no law may limit any right entrenched in the Bill of Rights."
An important word contained in this section of "the Constitution" is "limitation".
[22] Ex parte Chairperson of the Constitutional Assembly: In re Certification
of the Constitution of the Republic of South Africa , 1996 [1996] ZACC 26 (6
September 1996) (hereinafter the 'First Certification Judgment')
[23] In State Information Technology Agency (SOC) Limited v Gi jima
Holdings (Pty) Limited,8 it was held:
"That the creation of fundamental rights was about the protection of human
beings finds expression in the First Certification Judgment. There this court
said: "The movement to recognise... "
8 State Information Technology Agency (SOC) Limited v Gijima Holdings (Pty)
Limited 2018 (2) SA 23 (CC) Para 19
[24] Limpopo Traditio nal Leadership and Institutions Act, 6 of 2005
(hereinafter the "Limpopo Traditional Leadership and Institutions Act").
In the pre-amble, the Act states: "Whereas the Constitution recognizes-
• The Institution, status and role of traditional leadership according to
customary law; and
• A traditional authority that observes a system of customary law."
Under the heading definitions the Act states: " area of jurisdiction ," as: " the area of
jurisdiction designated for a traditional community and traditional council that have
been recognized in terms of this Act."
[25] In Allpay Consolidated Investment Hol dings (Pty) Ltd v Chief Executive
Officer of the South African Social Security Agency 9 Froneman J held that it is
necessary to consider whether the evidence on record established the factual
existence of any irregularities and, if so, whether the materiali ty of the irregularities
justifies the legal conclusion that a ground for review exists.
[26] In JE Mahlangu and Another v Minister of Police 10 where it was held that
once it has been established that the constitutional right not to be deprived of one's
physical liberty has been interfered with, the deprivation is prima facie unlawful, and
the infringer bears the onus to prove that the inference was justified.
[27] In Greater Tzaneen Municipality v Bravospan 11 252 the Court states: "The
Supreme Court of Appeal held that section 172 (1)(b) confers a wide discretionary
power upon courts to make any order that is just and equitable."
Applying the Law to Evidence
[28] The same reasoning that Froneman J applied in Allpay Consolidated
Investment Holdings (P ty) Ltd v Chief Executive Officer of the South African
9 Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the
South African Social Security Agency [2013] ZACC 42; 2014 (1) SA 604 (CC)
10 JE Mahlangu and Another v Minister of Police [2021] ZACC 10 at para 32
10 JE Mahlangu and Another v Minister of Police [2021] ZACC 10 at para 32
11 Greater Tzaneen Municipality v Bravospan 252 CC 2025 BCLR 1 (CC) para 23
Social Security Agency ,12 can apply to appeals and grounds for appeals, meaning
that if only one of the grounds of the several grounds for appeal is established to
exist, it justifies the legal conclusion that the appeal is successful.
[29] In JE Mahlangu and Another v Minister of Police ,13 the Judge reasoned
that the Minister of Police had to bear the onus to proof if justification is pleaded and
have a duty to begin adducing evi dence. In the court a q uo the Magistrate clearly
erred in allowing the Appellant to start to lead evidence in the Application. The
Magistrate erred in not finding that on a point of law, the Respondent raised self -
defense, therefore, the onus rested upon the Respondent to start.
[30] In terms of the evidence given in the court a q uo, the Appellant and
Respondent fell under the Limpopo Traditional Leadership and Institutions Act, and
the decision taken by the Traditional Council is relevant and applicable an d that they
should live together harmoniously as the homestead belongs to both of them.
Relief Sought
[31] I conclude that the Magistrate acted contrary to what the law dictates as to
who has the burden to start leading evidence. Section 172(1)(a) of "the Constitution"
allows a Court to declare law or conduct that it finds to be inconsistent with the
Constitution, invalid. In terms of the Constitution and the caselaw discussed in this
judgement, the burden to start a proceeding in a court when grounds of justification
are pleaded, clearly rest on the Defendant (in this case, the Respondent). The
procedure followed by the Learned Magistrate in the court a quo falls to be incorrect.
[32] However, under section 172(1)(b) of the Constitution, a court deciding on a
constitutional matter has a wide remedial power. It is empowered to make " any order
that is just and equitable." As found in Greater Tzaneen Municipality v Bravospan
12 Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the
12 Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the
South African Social Security Agency [2013] ZACC 42; 2014 (1) SA 604 (CC)
13 JE Mahlangu and Another v Minister of Police [2021] ZACC 10
252,14 the remedial power of a court that is deciding on a constitutional matter is
wide enough that such a court is only bound by considering" just and equitable".
[33] Overall, it seems to me that "just and equitable" dictate that the Appellant be
allowed to use the premises known as number 9 […] Matshollela (Village) Section,
Ga Marishane, Limpopo for his Dental practice only and that the Respondent uses
number 9 […] Matshollela (Village) Section, Ga-Marishane, Limpopo as his
residential home.
[34] The aspect regarding ownership of number 9 […] Matshollela (Village) Section,
Ga Marishane, Limpopo was never before the court a quo and whether such rights
did accrue to the Appellant is an issue for another court to decide.
Appellant's request as to this Court granting an Order (which includes Costs)
[35] The Appellant in his Heads of Argument asked this Honorable Court to m ake
the following Order:
35.1 This Appeal is upheld with cost in terms of scale "B".
35.1.1 The Interim Order granted in favour of the Appellant is hereby
confirmed; and
35.1.2 The Counter -Interim Order of the Respondent granted on the
19th of February 2024 is hereby set aside.
Alternatively;
35.1.3 This Honourable Court is requested to make an appropriate
order under the circumstances.
14 Greater Tzaneen Municipality v Bravospan 252 CC 2025 BCLR 1 (CC) para 23
[36] Appellant achieves nominal success to the extent that the Appellant is allowed
to use the premises at number 9 […] Matshollela (Village) Section, Ga -Marishane,
Limpopo for his Dental practice only and is entitled to all its cost, including cost of
this Appeal.
Order
1. The appeal is upheld.
2. The order of the Nebo Magistrate's Court, District of Makhuduthamaga
is set aside and replaced with the following:
a. The Appellant will be allowed to enter the premises situated at
number 9 […] Matshollela (Village) Section, Ga -Marishane, Limpopo
from 08H00 - 17H00 on weekdays and this will be for the Appellant to
use as a Dental practice only.
b. The Respondent will be allowed to use the property known as
number 9[…] Matshollela (Village) Section, Ga-Marishane, Limpopo as
his residential home.
3. The Respond ent is ordered to pay the costs of the appellant in this
Court on scale "B" as well as in the Nebo Magistrate's Court.
J D STROH AJ
JUDGE APPEAL
NAUDE-ODENDAAL J
JUDGE APPEAL
Appearance:
For the Applicant: Adv K.K. Kekana
Instructed by: DA Mawasha Attorney Inc,
c/o Buthane Rasemane Attorneys, Polokwane
For the Respondent: Mr A.H. Stander
Instructed by: AH Stander & Aggenbag Incorporated, Pretoria
Dates Heard: 9 May 2025
Date Reserved: 9 May 2025
Date Delivered: 18 September 2025