REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA •
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3)
REPORT ABLE: YES/NO
OF INTEREST TO THE JUDGES YES/NO
REVISED,
,, ,. ,,,, . ,,,,, ,,,,,,. ·-"'-'--'
OATE}f/+/u SIGNAT~ ~
In the matter between:
THE PREMIER OF LIMPOPO PROVINCE
✓
MEC CO-OPERATIVE GOVERNANCE,
Appeal case no: HCAA22/2024
Court a quo case no: 2505/2019
1 ST APPELLANT
HUMAN SETTLEMENT AND TRADITIONAL
2
AFFAIRS 2ND APPELLANT
THE HEAD OF DEPARTMENT CO-OPERATIVE
GOVERNANCE, HUMAN SETTLEMENT AND
TRADITIONAL AFFAIRS 3RD APPELLANT
And
MKHACANI ADEYEMI MALULEKE HLANEKI 1sr RESPONDENT
HLANEKI TRADITIONAL COUNCIL 2ND RESPONDENT
HLANEKI TRADITIONAL COMMUNITY 3RD RESPONDENT
NATIONAL MINISTER OF CO-OPERATIVE
'
GOVERNANCE & TRADITIONAL AFFAIRS 4TH RESPONDENT
LIMPOPO PROVINCIAL HOUSE OF
TRADITIONAL LEADERS 5TH RESPONDENT
KHA YIZENI ISHMAEL MASWANGANYI 6TH RESPONDENT
KHAYIZENI SOLOMON MASWANGANYI 7TH RESPONDENT
3
COMMISSION ON TRADITIONAL LEADERSHIP
DISPUTES AND CLAIMS ath RESPONDENT
Limpopo Provincial Committee on TRADITIONAL
LEADERSHIP DISPUTES AND CLAIMS 9th RESPONDENT
,i
COMMISSIONER R.T KGATLA N.O &
OTHER COMMISSIONERS 10TH RESPONDENT
,
Delivered: This judgment is handed dow~ electronically to the parties legal
representatives' email. The date for delivery is deemed to be 31 July 2026.
Reserved Date: 21 November 2025
JUDGMENT
Coram: Naude- Odendal J et al, Pillay AJ and Masilo AJ.
4
Introduction
[1] This is an appeal against the judgment of Muller J, handed down on 10
November 2022, with the leave of the Supreme Court of Appeal order
granted on 31 August 2023 to the Full Court of the Limpopo High Court.
;fr'
[2] This appeal comes against the backdrop of a fusillade of non-compliance by
the Appellant, the latest of such is the Supplementary Founding Affidavit to
the Condonation, filed on 19 November 2025, after: the Court had granted
the Appellants application for the postponement of this matter on 24 October
2025 to file a proper record of appeal.
[3] The Limpopo Province is a rural province, which is mainly a consolidation of
bantustans and parts of the former Transvaal Administration, with the bulk of
its occupants being traditional communities and villages, who still practice
and observe a system of customary law.
[4] As a direct result of this backdrop and layout of this province, the Kgatla
Commission found itself confronted with a quest to investigate traditional
leadership disputes spanning to some 528 disputes and claims, as set out in
the Interim Report to the Premier. This was in fact the start of problems for
governments (both national and provincial) and courts, as the disputants
5
before the Kgatla Commission, upon being dissatisfied with the findings and
recommendations, would then resort to court in terms of section 34 of the
Constitution read with PAJA to have their disputes adjudicated by an
independent tribunal.
[5] It is not astounding that the consequence of this backdrop and work of the
Commissions into traditional leadership disputes in terms of section 26 of the
Framework Act, 2003, the Supreme Court of Appeal and Constitutional
Courts find themselves inundated by appeals 'on traditional leadership mostly
from this province.
[6] This matter consists of thre~ sets of applications. The first is an application
-,
for condonation and reinstateme_nt of the late filing of the Notice of appeal.
Second is the Appli'Cation for the late filing of the record of appeal. Third is
the 'application' -for postponement. There is also a Rule 30A regarding the
incoherent and non-compliant record of appeal. The 1st to 3rd Respondents
oppose the condonation and the reinstatement application. Further, oppose
the 'application for the postponement of the appeal hearing or removal from
the roll.
6
Ad Rule 30A
[7] On 13 November 2024, the First to Third Respondents served a Rule 30A,
the nub of which is as follows -
(a) failure to comply with Rule 49(6)(a);
(b) failure to comply with the Rule 49(7)(a), 49(8)(a) and para 7.8 of
the Practice Directives; this complaint centred ~round the
abhorring state of the Record of Appeal
© failure to comply with Rule 49(7)(a)(ii);
(d) failure to comply with Rule 49(8)(a);
[8] I must state that instead of addressing the complaints in Rule 30A, the
Appellants elected to bury their head in the sand, and hoped that the
complaint would just disappear on its own.
[9] This rule is intended to deal with matters of form not of substance.
See: Afrocentrics Projects and Services (Pty) Ltd t/a Innovative Distribution v
State Information Technology Agency (SITA) SOC Ltd and Others [2023]
ZACC'" 2. It is intended to deal with irregular steps taken by parties during
litigation and where the irregularity emanates from the inappropriate use of
the rules of court. D Harms Civil Procedure in the Superior Courts S1-69 at
B30.3.
7
[1 0] At its heart, the purpose of the Rules of Court is to oil the wheels of justice to
attain the expeditious resolving of disputes with a minimization of costs.
Quibbling about trivial deviations from the Rules of Court retards, instead of
enhancing the civil court process. See: Louw v Grabler and Another
(3074/2016) [2016] ZAFSHC 206. The object of the rules is to secure the
inexpensive and expeditious and for the completion of litigation ·before the
,;,~-
courts: they are not an end in themselves . See: Hudson v Hudson 1927 AD
259 at 267. Eke v Parsons 2016 (3) SA 37 (CC) at 53 A-D, Centre for Child
Law v Hoerskool, Fochville 2016 (2) SA 121 (SCA) at 131 G. To this end, the
rules should be interpreted and applied in a spirit which will facilitate the work
of the courts and enable litigants, to resolve disputes speedily and
f
inexpensively . See: Ncoweni v Bezuidenhout 1927 AD 259 at 267.
[11] In Mukaddam v Pioneer Foods Pty (Ltd) 2013 (5) SA 89 (CC) the
;
Constitutional Court commented on the purpose of the Rules of Court as
follows:
"{32] It is important that the rules of court are used as tools to
facilitate access to courts rather than hindering it. Hence rules
are made for the courts and the courts are established for rules.
Therefore, the primary function of the rules of court is the
attainment of justice. But sometimes circumstances arise which
are not provided for in the rules. The proper course in those
8
circumstances is to approach the court itself for guidance. After
all, in terms s173 of the Constitution each superior court is the
master of its own process.
[12] In Eke v Parsons 2016 (3) SA 37 (CC) the Constitutional Court said:
"{39) .... Without a doubt, rules governing the court process cannot be
disregarded. They serve an undeniable important purpose. That,
however, does not mean that ~ourts should be detained by the
rules to a point where they are hamstrung in the performance of
the core function of dispensing justice. Put differently, rules
should not be observfJd for their own sake. Where the interests
of justice so dictate, courts may depart from a strict
observanCe qf the rules. That, even where one of the
litigants is insistent that there be adherence to the rules.
Not surprisingly, courts have often said "[i]t is trite that
rules exist for the courts, and not courts for the rules."
[13] , This issue involves more than two traditional communities, we say more than
two, as some of the villages falling under other traditional communities like
the Hlaneki, Mashimbye, Mathonsi, Maswanganyi, Rikhotso, whose land
includes, Basani, Bode, Dingamazi, Dzingidzing, Nwa Makena, Sikhanyani
9
villages, were incorporated into the gazetted land of the Maswanganyi. This
occurred without consultation with either the Provincial House of traditional
leaders, the Local House of traditional leaders or the affected communities.
Ad Condonation and reinstatement
[14) The principles governing the granting of condonation are trite. Simply put, an
application for condonation must set out justifiable , reasons for non
compliance. In Melane v Sanlam Insurance Co Ltcr-, Holmes JA stated the
i
principle as follows:
"In deciding whether sufficient cause has been shown, the basic
principle is that the Cq~rt has a discretion, to be exercised judicially
upon a consideration of all the facts, and in essence it is a matter of
fairness to ,ooth sides. Among the facts usually relevant are the degree
of lateness, the explanation thereof, the prospects of success and the
importance of the case .. . "
Notice of Appeal and Record of Appeal out of time
[15) The Supreme Court of Appeal on 31 August 2023 granted the leave to
appeal to the Full Court of the Limpopo High Court, Polokwane Division. This
meant that the Appellants had 20 days reckoned from 1 September 2023.
This, in terms of Rule 49(2), ended on 28 September 2023. It was only some
10
10 months late, on 16 July 2024, that the Notice of appeal was filed. This
was accompanied by an application for condonation issued on the same
date, 16 July 2024. In this condonation application the Appellants seek
condonation for the late filing of the Notice of Appeal and the reFord of
appeal.
\
[16] The record was only delivered on 10 October 20,24, and filed with the
Registrar of this Court on 14 October 2024. The deponent in the application
also sought reinstatement of the deemed lapsed appeal. The irony of this
application is that the deponent, put no effort ipto complying with the Rules
:r
and Practice Directives of filing a record timeously, instead, he anticipated
failure to comply and sought condonation for that. This was despite having
been 10 months late with the Notice of Appeal. The application for
reinstatement and condon9tion is opposed by the 1st to 3rd Respondent, as
there is also- no condonation application to explain the failure to file the
appeal record timeously. This non-compliant record of appeal necessitated a
Notice in terms of Rule 30A which was served on 13 November 2024.
[17] This failure led to the 1st to 3rd Respondents filing a Supplementary
Answering Affidavit on 20 January 2025 in which they raised queries with
regard to defects in the appeal record and failure to comply with Rule 49. As
at the hearing of this appeal on 24 October 2025, the Appellants had failed to
I I
correct the appeal record. This was despite the Rule 30A notice being
served on them on 13 November 2024. This resulted in the hearing of the
appeal being postponed to 21 November 2025 to enable the Appellants to
file a proper record of appeal.
[18] In this matter it is rather befitting to mention that the record of appeal was
filed perceptibly out of time, as it was filed on 14 October 2024. There is no
valid application for condonation. This is so given that the Appellants could , .
not ask for condonation out of the abundance 0f caution, before the event
occured this is simply because in an application for condonation, the
applicant is required to proffer an explanation for each time of the delay.
[19] As a result, the application for condonation of 16 July 2024 before the record
was filed does not come 11.ear the level of compliance with the Rules, as it
does not explain to the court what has transpired since 16 July 2024. There
is an unexplained period of at least 72days, which we believe not a
smidgeon qf explanation is proffered for the 72 court days. This is most
certainly without doubt remiss of the Appellant. This is more so on the face of
a Supplementary Answering Affidavit filed on 21 January 2025 in which the
Respondents jeered the Appellants regarding their non-compliance.
12
[20] The Respondents in paragraph 20, bewailed that the Appellants litigate with
the public purse. Further, in paragraph 21 lamented that the Appellants'
conduct is habitual delays, with a pattern of bad faith. The sentiments and
the description by the Respondents fit the Appellants' track record, which
can be summed up as nothing but lackadaisical. The sad thing, is that
neither the client, (being the legal officers in the re~pectiv¼e Appellant
Departments), nor the counsel in this matter saw anything wrong with the
state of this matter. The Appellants elected not to even give the courtesy of a
Replying Affidavit to the Answering Affidavit and Supplementary Answering
Affidavit in the reinstatement and condonation application. The Appellants
set the matter down, filed a practrce .. note and Heads of Argument with no
regard whatsoever to the state of the ,record and to attempt to proffer some
form of explanation for this catholic non-compliance with the Rules of Court.
[21] The Constitutional Court per Cameron J writing for the majority decision had
occasion to posit and settle the ever arising question by the obligations of the
state, in the matter of MEC for Health, EC v Kirkland Inv (Pty) Ltd t/an Eye &
Lazer tnstitute 2014(3) SA 481 (CC) at para 82, where it was said -
''To demand this of government is not to stymie it by forcing upon it senseless
formality. It is to insist on due process, from which there is no reason to exam
government. On the contrary, there is a higher duty on the state to respect the
law to fulfil procedural requirements and to tread respectfully when dealing
13
with rights. Government is not an indigent or bewildered litigant, adrift on the sea of
litigious and certainty, to whom the court must extend a procedure-circumventing
lifeline. It is the constitution's primary agent it must do right and it must do it
properly."
[22] This Court needs to tabulate the history of non-compliance which t,as taken
,
place since inception, and this conduct on the part of the state requires this
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court to take a dim view of such lackadaisical behavior by the officials. This
behavior has become endemic, and the courts are confronted with a
quagmire that they every time have to strike matt~rs off the roll, resulting in
poor litigants being denied access to speedy resolution of their disputes by
an independent court as contemplated in section 34 of the Constitution.
[23] The law regarding condonation is trite, various courts including the
Constitutional Court in Mphephu Ramabulana & Another v Mphephu &
Others 2022 (1) BCLR 20 (CC), have had occasion to deal with the issue
wherein Khamf:)epe J posited that -
"[83] It is perspicuous that compliance with this Court's Rules and timelines is not
optional, and that condonation for any non-compliance is not at hand merely
for the asking. The question in each case is "whether the interests of justice
permit" that condonation be granted. Factors such as the extent and cause
of the delay, the reasonableness of the explanation for the delay, the effect
of the delay on the administration of justice and other litigants, and the
14
prospects of success on the merits if condonation is granted, are relevant to
determining what the interests of justice dictate in any given case.
[34] In casu, we are faced with a delay of over a year, which is evidently
inordinate, and not justified by cogent reasons. I find myself compelled to
take a dim view of the applicants' explanation that they had to wait for the
reports of the Houses of Traditional Leaders in order to decide ,whether to
appeal. It is not open to applicants simply to ~isregard this Court's Rules
because they are mulling over whether or not to app~al. It is also plain from
the grounds of appeal advanced that the Houses' reports bore little
relevance to the applicants' decision to appeal."
[24] The learned Maya JA, in Camps Bay1, confirmed the position as follows:
' ... the question whether the interests of justice require the grant of such
extension depends on 'the facts and circumstances of each case: the party
seeking it must furnish a full and reasonable explanation for the delay which
covers the entire duration thereof and relevant factors include the nature of the
relief sought, the extent and cause of the delay, its effect on the administration of
justice ~nd other litigants, the importance of the issues to be raised in the
intended proceedings and the prospects of success.'
[25] The Constitutional Court in City of Cape Town v Aurecon South Africa (Pty)
Ltd [2017] ZACC 5, at para 45 quoted with approval, the SCA as follows-
1 Camps Bay Ratepayers ' and Residents' Association v Harrison (2010) 2 All SA 519 (SCA) para 54
15
"[45] ... The SCA, relying on this Court's decisions in Van Wyk[36l and eThekwini,[371
adeptly set out the factors that need to be considered when granting
condonation as follows:
"Factors that are relevant to this enquiry include but are not limited to the
nature of the relief sought, the extent and cause of the delay, the effect of
the delay on the administration of justice and other litigants, the
reasonableness of the explanation for the delay, the importance of the issue
to be raised in the intended appeal and the prospects of success."
J
[26] In Ramabulana, in considering an application for condonation, the
Constitutional Court pointed out that -
"[38] While I am of the. view that the extremity of the delay, coupled . ,,
with the paucity of the explanation provided, justify the
immediate refusal of condonation, I am mindful that this Court
has said that lateness and inadequacy of the explanation
provided are not necessarily dispositive of the question of
condonation. This is because the other factors relevant to
condonation may favour its granting and tilt the interests of
justice to the other side of the scale."
[27] The court possesses wide discretionary powers which it exercises
judiciously in the evaluation of relevant factors in a condonation application.
16
The factors for consideration in a condonation application are closely related,
a reasonable explanation for the delay coupled with a good prospect of
success may augment the chances of success of the application for
condonation; a weak explanation, but good prospect of success and the
importance of the case will permit for the granting of an application .for
condonation. The interests of justice underpin the court's exercis.e of its
discretionary powers. A good explanation without prospect of success on the
merits warrants a refusal of condo nation.
'
[28] The court may grant condonation despite a poor explanation for the delay
~
where doing so will be in the interests of justice. The importance of this
matter to the non-state re?pondents, who are affected by this judgment
cannot be overemphasized .
[29] The ripple effect of the findings and recommendation of the Kgatla
Commission on the various neighbouring Headmen, who have signed the
resolution on page 349, namely the Basani, Bode, Dzingidzingi, and Nwa
Makwena. It is undeniable that this matter touches on atleast the two senior
traditional leaders' territory, namely 'Hosi Maswanganyi' and Hosi Hlaneki.
[30] This matter has been lingering in the corridors of justice since 2019, with no
sense of finality in sight. The sad side of this protracted legal battle is that
17
communities on the ground are affected and are not able to get finality which
is guaranteed in common law, that courts are there to provide parties who
are disputants an element of finality and closure. Regrettably, this lack of
finality is in this matter orchestrated and is at the instance of the state party
who exercise statutory powers.
[31] As we have intimated herein above that there is no application for
condonation for the late filing of the appeal record since, the Appellants filed
their application for condonation when they , filed their application for
reinstatement 16 July 2024, prior to the filing of the record in 14 October
2024. This then brings to question whether one of the factors for
consideration in a condonation application, namely a reasonable explanation
for the delay has not been proffered. The Supreme Court of Appeal have
said that each delay and th~ reasons for such delay must be explained.
[32] In this matter ttie application for condonation was insinuated in the
application for reinstatement, which was made some months prior to the
filing qf the record of appeal. There is no reasonable explanation proffered
for the period between the application for the reinstatement and the filing of
the record of appeal. One can safely say the application for condonation was
made in anticipation, as if it is out of the abundance of caution. The
18
application therefore does not meet the criterion regarding a reasonable
explanation of every delay.
[33] Even if one was to consider the granting condonation despite the glaring lack
of reasonable explanation, the second factor in an application for
condonation, being a good prospect of success, to can augment the chances
of success of the application for condonation is lacking too. This will become
apparent as we deal with the aspect relating to the merits of the review
application and the assailability of the decision of both the Premier and the
Kgatla Commission's findings and recommendations.
[34] Another factor to consider is the iQ1portance of the case. As we have already
indicated that the importance of this matter lies not only in the parties before
this court, but in the affected communities of Basani, Bode, Dzingidzingi, and
Nwa-Makwena.
[35] Further, the' importance of this case lies in the set criteria in section
25(2)(a)(viii) all traditional leadership claims and disputes dating from 1
September 1927. Counsel for the Appellants conceded that the dispute
dates back to 1894, which is well outside of the catchment period of section
25(2)(a)(vii). To permit this matter in which a dispute arose before the
catchment period would open the flood gates, moreso that Parliament took a
19
conscious decision to look at the specific regulatory framework which had
enormous impact on the institution of traditional leadership, being the Black
Administration Act, 38 of 1927, which brought about serious distortions in the
institution of traditional leadership.
[36] The last element to consider in an application for condon~tion is interests of
justice, which must underpin the court's exercise of its discretionary powers.
As we have already traversed each and every factor in; the set criteria for
evaluating applications for condonation. We are satisfied that since there is
no good explanation for the failure to comply with the Rules and for each
time in the delay for the filing of tpe reeord of appeal. Further, we are
satisfied that there are no prospects of success on the merits, be it from a
perspective of the procedurals aspect or the substantive aspect as shall be
seen herein below:
[37] Based on the abpve, it would not be in the interest of justice for this court to
grant condonation for the late filing of the record of appeal, and therefore,
condonation for the late filing of the appeal record must be refused.
[38] The Appellants ex abundante cautela sought reinstatement of their lapsed
appeal. The reason we say this is because the application for condonation is
premised on the fact that the Appellants are of the firm view that their appeal
20
has not lapsed. However, in the event that, if it is found that their appeal had
lapsed, the Appellants seek reinstatement of the lapsed appeal.
[39] The Appellants were on 31 August 2023 granted leave to appeal by the
Supreme Court of Appeal. On 16 July 2024 the Appellants filed their Notice
of Appeal. Rule 49(6)(a). The Appellants were enjoyed within 60 days after
delivery of a notice of appeal, to make written application to the registrar of
the division where the appeal is to be heard for a date for the hearing of such
appeal.
[40] Rule 49(6)(a) states that ... appellant fails to do so a respondent may within
1 O days after the expiry of the said period of 60 days, as in the case of the
appellant, apply for the set down -of the appeal or cross-appeal which he may
have noted. If no such application is made by either party the appeal and
cross-appeal shall be deemed to have lapsed: Provided that a respondent
shall have the right to apply for an order for his wasted costs.
[41] The Appellant on 15 November 2024 served and filed an application for trial
date. This was after the Appellant had filed its Notice of Appeal on 16 July
2024. A period of 60 court days if reckoned from 17 July 2024, would end on
11 October 2024. This simply means that the appeal lapsed on 12 October
21
2024. As at 15 November 2024 when the Appellants through the office of the
state attorney applied for trial date the appeal had lapsed.
[42] This then begs the question was there an appeal in respect of which the
Appellant could apply for a trial date? Reluctantly, we do not for a second
believe there was such an appeal, until the Appellants hacJ applied for
reinstatement of the appeal. This is the case given that as at when the
/
record was filed, the appeal had lapsed, as it was deemed to have lapsed
when the Appellants failed to file the record together with the application for
a hearing date on or before the 11 October 20:24.
[43] Without belaboring the point regarding the failure to proffer a reasonable
explanation for the delay in filing an application for trial date and the record
of appeal as contemplated in Rule 49(6)(a). Further, at the risk of sounding
tautologous, the Appellants failed to provide an explanation for every time
delay, from 16 July 2024 to 15 November 2024 when they ultimately filed an
applicati0n for a hearing date. In the absence of an explanation for every
time delay in the period 16 July 2024 to 15 November 2024 the only logical
conclusion is that the requirements for reinstatement has not been satisfied.
[44] To make matters worse, there is no reasonable explanation for the delay, the
only explanation proffered relates to period of confusion before Masete was
22
provided with a copy of the Supreme Court of Appeal leave granting
judgment, which relate to the filing of the Notice of Appeal, which its failure
does not have an in built remedy of deemed lapse as in Rule 49(6)(a).
[45] The next requirement for consideration of an application for leave to appeal
is good prospects of success. We have tangibly dealt with the issue of
'
prospects of success from a procedural point of view, in1two fronts-
[45.1] Parliament had set a date of 1 September 1927 as the cut of date for
j
the referral of disputes. The Maswanganyi party in its dispute referral ,.
form claimed to have lost their senior traditional leadership in 1957. In
the hearings before the Kgatla Commission, as relied on by Counsel
'
for the Appellants in his heads of argument, that Mr Joe
Maswanganyi at pages 1059-1060, 1063 of case 2726/2020 testified
that Maswanganyi held senior traditional leadership until it was lost in
1957.
[45:2] During the hearing on 21 November 2025, in reply Counsel for the
Appellants on being confronted with a plethora of records dating back
to 1910, 1913, 1932, 1934 and 1951 that shows that Maswanganyi's
were a headmanship. Counsel the resorted to and conceded that the
Manswanganyi's lost their senior traditional leadership in 1894. This
23
we accept being an inference drawn from the arrival of the Hlaneki's
in 1894.
[45.3] This then leads to the question whether the Kgatla Commission , from
a procedural point of view had jurisdiction to investigate and to hear a
traditional leadership dispute relating to senior traditional leadership
of Maswanganyi which was lost before 1 September 1927.
[45.4] Further, from a procedural point of view, the fact that the Kgatla
Commission proceeded to conduct an inspection in loco, without
inviting the Hlaneki's and held hearings in which people testified or
gave explanations regarding historical artifacts is a serious breach of ,,.
procedural fairness requirements ..
[45.5] The fact that the Pr~mier, in deciding to accept the decision of the
Kgatla Commission fafled to refer the decision in terms of section 30
of the Limpopo Traditional Leadership & Institutions to the Provincial
House of Traditional Leaders within seven days from the date of 29
May 2017. Further, that he had not received advice within fourteen
days-from the Provincial House of Traditional Leaders prior to taking
a decision in terms of section 30(3) rendered the decision to be
susceptible to being reviewed and set aside.
[45.6] With regard to the substantive part of the review application, the
Kgatla Commission had misdirected itself and found against
overwhelming archival material that prove that as early as in 191 0
24
when Assistant Native Commissioner went to investigate a boundary
dispute between Maswanganyi and Ngove. The two headmen, who
were interviewed and it was even recorded that even the subjects of
the two headmen know the boundaries.
[45.7] Further, as early as 1912, 1913, 1932, 1938 the records including the
report of the death of the father to the claimant. Even the dispute over
'
who should succeed their father's headmanship.
[45.8] As late as 1951, the request to the SA Institute of Race relations by
the contender for the headmanship, when he besieged the
assistance of the S.A Institute of Race Relations for him to be
recognised as a headman of the Maswanganyi area.
[45.9] The most crucial issue in the investigation of the question of prospects
of success, is whether in the period in question, there was ever any
senior traditional leadership on the Maswanganyi to restore?
[45.1 O] All of the above speak to one simple truth that the Appellants have no
prospects 6f success on the merits. Therefore, to grant reinstatement
when there is no reasonable explanation and there are no prospects
. of success is just incongruent with judicious exercise of this court's
discretion.
[46] In the circumstances, the Appellants' application for condonation and
reinstatement is dismissed with costs, including costs of two counsels on
25
scale C. Despite the dismissal, we deem in prudent to deal with the merits,
as we had permitted the parties to proceed with full argument on the merits
of the appeal, and would provide judgment thereafter. This is also based on
the fact that we have dismissed the condonation application based on the
fact that there are no reasonable prospects of success on the meri.ts.
Background
[47] One Khanyizeni Ishmael Maswanganyi, on 30 August 2012 signed and
completed a claim to the Commission on Traditional Leadership Disputes
and Claims. The claim form specifically in clause 6.3 reads
"6.3 Select from the following the relevant description of your claim or
Dispute:
Description Mark your choice with a cross
Dispute of ari existing traditional Kingship
leadership position
Principal Traditional
leader
Senior Traditional X
leader
Headman
Boundary dispute between two land
26
traditional authorities Boundary X
Provide names of
villages and/or farms
involved
/
Claim for new traditional
leadership position
[48] In the questionnaire on traditional leadership disputes and claims form,
Khanyizeni Ishmael Maswanganyi, on 30 August 2012, completed and wrote
the following answers:
"2.a. When was your traditipnal leadership status lost?
/
November 1957
2.b. How was your tradition~! leadership status lost?
We the Maswanganyi were incorporated into the newly established
·Hlaneki Tribal Authority. From that time our status was reduced to be
that of Headman under Hlaneki.
' 4. Traqitional leadership and leaders under your authority
a) How many traditional communities that are grouped together form your
traditional leadership within your area of jurisdiction (name them and give
their location)
Village
Silao
Dingamazi
Headman
Shingomani
Thavani Mathonsi
Dzingidzingi
Shamavhungu
Nwa Makena
Basani
Gandlanani
Sikhanyani
27
Mashau Maswanganyi
Mbhangele
Chudu Mdaka
Manganyi Xihovhorolo
Khani
Mashimbye"
[49] In a submission to the CTLDC, which this court has cause to believe must
have served and been considered by the Kgatla Commission, the Hlaneki's
attached the following documents, from which tt,e following passages were
extracted -
[50] In a document dated 30 September 1912 it is stated: -
"In July 1910 I had occasion to proceed to the area of ground controlled by
lndunas Ngobe and Maswanganyi to inquire into and determine a dispute which
had arisen between those two indunas with respect to certain debatable ground
to which both laid claim.
I imagine that the Acting Sub-Native Commissioner, Groot Spelonken, has
obtained much of his information from Mr Albasini and, if I mistake note, Hlaneke
was one of the instruments used by the former in the agitation and engineered
through Mr Barend Vorster to secure his appointment as Chief of Tshangaan."
Page 954
28
[51] In a document titled "Notes of meeting held at Groot Spelonken on 11 th
January 1913. On the second page it reads-
"When Maswanganye was given his area by Mr Albasini, I was already
established there together with the greater number of the above mentioned 48
kraals. As far as I can remember only seven kraals have .. come there since
Maswanganye's appointment. When Maswanganye came to live nepr my kraal I
was under Ndengeza. I never transferred my allegiance to Maswanganye, but
when Capt Schiel and Mr Albasini had a quarrel I transferred my allegiance to
Hlaneki, my reason for doing so was on account of my being a follower of Capt
Schiel and Ndengeza sided with Mr Albasini. I was present when Capt Schiel
pointed out the North Eastern boundary of Hlaneki's area to him and I remember
him distinctly informing Hlaneki this boundary would be the Klein Letaba river. I,
together with all 48 Natives above mentioned, reside on the South Western side of
Klein Letaba River. When Capt Schiel made this boundary line he informed
lndunas Maswanganye and Nkomo that they would have to be represented by
Hlaneki. These lndunas objected and he ultimately allowed them to be
independent indunas. Page 935-936
\
[52] Further, in a document dated 10 November 1932 titled "Inspection of
Unsurveyed Crown Lands
"With reference to your Minute No. a/5113/436 of the 24h ultimo, I have to inform you
that it is understood and that the areas at present occupied by Hlaneki and
Maswanganye and their followers were allotted to them during the days of the South
29
African Republic. The boundaries of their respective areas are known to these
headmen and their followers." Page 962
[53] In a letter dated 12th August 1938 to the Additional Native Commissioner,
Tzaneen. Titled Death of Independent Headman Samuel Maswanganye, it
states-
"It is with regret that I have to report the death of Independent Headman Samuel
Maswanganye who died on unsurveyed crown land on 3(jh ultimo. The appointment
of a successor will be advised in due course.
Assistant Native Commissioner." Page792 and 970 .,
[54] In a letter dated 19th March 195.1, one Petros Maswanganye wrote to "The
S.A Institute of Race Relations
"Dear Sir
With reference to the letter I wrote to you in connection with headman Samuel
;
Mas~ahganye and myself in respect of being a leader.
It has been investigated by the Native Commissioner Duiwelskloof on the 16th instant.
And.all agreed upon the matter that I am the son of Mikhadzani (Maswanganye), the
late headman. ... It was found that he is not the son of my father who was headman
before .... " page 932
[55] In a letter dated 27 March 1951, addressed to Petrus Kedonga
Maswanganye, titled "Unofficial headman of Maswanganye area.
[56]
30
"I have to advise you that the residents of the above area in this district ... and I as
their leader in the place of headman Samuel Maswanganye. You are therefore
requested not to interfere any further in the affairs of this community, or enter this
district without permission.
VS Liefeldt" page 995"
On the 29th November 1951, Notice No. 1854 dealing with "DEFINITION OF
',
THE AREAS OF CERTAIN TRIBES AND ESTABLISHMENT OF BANTU
TRIBAL AUTHORITIES AREA OF DUIWELSKLOOF~ LETABA DISTRICT.
"It is hereby notified for general information that His Excellency the Govenor General
has been pleased -
Schedule A
1. Area of the T~onga Tribe under Chief William Makatshana Hlaneki and the
Hlaneki Tribal Authority.
The area in the area of Duiwelskloof, Letaba District, bounded as follows:
From1 a point at the centre of the concrete slab over the Molototsi River known as
Verschfontein, near the south eastern beacon of the farm Verschfontein No. 24;
thence in a straight line north eastwards to a beacon on the bank of the Middle
Letaba River and on the boundary of the farm Sterkrivvier No. 10 thence
downstream along the Middle Letaba River and Klein Letaba Rivers to a beacon,
at the bend of the Klein Letaba River, common to the Mabunda and the Hlaneki
31
Tribal Areas and opposite the Seandani dipping tank; thence south westwards in
a straight line to the point of commencement."
[57) The above quoted are from the typed government records that formed part of
the record of decision of the Kgatla Commission, as page 628 reads that
"Documents filed: Unindexed and Unpaginated Records received from the
State Respondent. Dated 1 December 2020"
' .
\
[58) Archival Records as Evidence by: Albert J. Mills\ Gabrielle Durepos & Elden
Wiebe, In: Encyclopedia of Case Study Research, it is postulated that -
f
"Archives mostly consist of personal and/or public written documents, maps, and
official and private letters, but more recently also of audio- and videotapes, and
Internet-based materials have also been included among archival records. For
centuries, archives have been gathered, preserved, managed, and analyzed by
kings, _local and national governments, religious organizations, the army, the
courts, the ,police and the intelligence services, universities, communities,
associations, and even individuals."
[59] Mills et al. in Archival Records as Evidence, further suggest that in the
application of archival records the following must be considered -
" When using archival records as evidence, a number of questions need to be
raised. Serious limitations can affect the nature of the questions researchers try to
32
answer and the reliability of their final research results. Some limitations can be
mitigated by collecting additional information from sources independent of the
archives initially consulted. Other times, however, researchers will need to
reformulate their research question to take these limitations into account, and to
be aware of the limited generalizability of their research results.
First, questions must be asked about the archival record under consideration. Is
the archival record genuine? If not, which of its sections, paragraphs, 'sentences,
*
or words cannot be dated with precision, and which ones appear to have been
modified ( added, deleted, altered) at a later time? The history of the record, as
pieced together from independent sources and the archive holder, is a good
starting point to ascertain how much of the record is genuine, and when (and
sometimes even why) changes to it were made (by adding handwritten comments
or deleting some words and paragraphs). An archival record will have to be dated,
a process that can be difficult as not all archives were fully catalogued, and can
result only in educated guesses, as the record might include no indication as to
the time when it was produced.'
[60] In this matter, this court is fortunate that the records referred to above, can
be identified in terms of date and authors of the archival records. This is the
same position in which the Kgatla Commission was, as the Hlanekis
submitted and attached the archival records to their submission. It is from the
reading of the record of decision of the Kgatla Commission that this court
was able to find the above documents and extract the quoted passages.
33
[61] The scholars in the field of archives, advise that when dealing with archival
records as evidence, one needs to ask the question Is the archival record
genuine? The reports, the notes of the meeting, the correspondence and
notices are all dated, and were transmitted or recorded at a particular point in
the history of South Africa. They were designed to report a particular set of
facts, or to record a state of affairs at that time regarding, the tribes in the
Letaba and Tzaneen area.
[62] The second criterion is, If not, which of its sections, paragraphs, sentences,
or words cannot be dated with precision, and which ones appear to have
been modified (added, deleted, alterep) at a later time? The records referred
to and attached to the record , do, not in any way suggest having been
modified.
[63] The sentences and paragraphs relating to indunas and the Maswanganyi
being indunas or lieadmen, do not lend themselves to any suggestion that it
cannot be dated and that it was modified at any stage in the life of the
documents referred to. This holds true for the recordal of facts of
headmanship from 191 O to 1951, which is a consistent record of the same
thing for 41 years.
34
[64] The Kgatla Commission was required in terms of the dispute referral by
Khanyizeni Ishmael Maswanganyi, dated 30 August 2012, signed, and
submitted to the Commission on Traditional Leadership Disputes and
Claims, that their claim was for the restoration of the Senior Traditional
Leadership of Maswanganyi.
,_$
[65] The Concise Oxford English Dictionary 12th Edition, defines the term
"Restoration" as 1. the action or process of restoring. 2. as the return of a
monarch to a throne, a head of state to government, or a regime to power.
"Restore" is defined as 1. bring back ~a previous right, practice or situation) ,,
reinstate, return (something) to a .former condition or position. "Restitution"
the restoration of something lost or stolen to its proper owner, 3. restoration
of something to its original state.
[66] What is apparent from the claim form is that the Maswanganyi claim that
they lqst senior traditional leadership status and the boundary of their
territory. This is expressed to have been lost in November 1957. As stated in
the questionnaire to the claim form-
"We the Maswanganyi were incorporated into the newly
established Hlaneki Tribal Authority. From that time our status
was reduced to be that of Headman under Hlaneki."
35
[67] The answer to the questionnaire raises two important questions, which are
inextricably linked to the question of prospects of success in the review,
namely: -
(a) Did the Maswanganyi have a Senior Traditional Leadership pr.ior to
November 1957?
(b) If no, then cadit questio. It is the end of the enquiry.
[68] The second question is, if it is found that they di€! ha~e senior traditional
leadership, when and where was it lost? If it was lost before 1 September
1927, then the Kgatla Commission did not have jurisdiction to investigate the
matter as it fell outside the catchment period.
'
Application of the law
[69] This appeal emanates from a review of administrative decisions which were
taken by the Kgatla Commission and subsequently by the Premier,
exercising statutory powers. It is important that one traverses this legislative
framework regulating the Institution of Traditional Leadership in South Africa.
[70] ' The Constitution of the Republic of South Africa, 1996 is the grundnorm for
all acts by both private and state organs.
36
[70.1] Section 33 deals with the right to just administrative action. It states
that-
"(1) Everyone has the right to administrative action that is lawful, reasonable
and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons."
[70.2] Section 211 deals with the recognition of traditional leadership. It
provides that -
"(1) The institution, status and role of traditional leadership, according to
customary law, are recognised, subject to the Constitution.
(2) A traditional aUthorit~ that observes a system of customary law may
function subject to any applicable legislation and customs, which
includes amendments to, or repeal of, that legislation or those '\
customs.
(:3) The courts must apply customary law when that law is applicable,
subject to the Constitution and any legislation that specifically deals
with customary law"
[70.3] Section 212 deals with the role of traditional leaders. It states that-
"(1) National legislation may provide for a role for traditional leadership as an
institution at local level on matters affecting local communities.
37
(2) To deal with matters relating to traditional leadership, the role of
traditional leaders, customary law and the customs of communities
observing a system of customary law-
( a) national or provincial legislation may provide for the establishment
of houses of traditional leaders; and
(b) national legislation may establish a council of traditional leaders:"
[70.4] Section 237 deals with diligent performance of obligations. It provides
that-
"All constitutional obligations must be performed diligently and without
delay."
[71] In order to give effect to section 21 Z, and comply with section 237,
Parliament passed the Traditional Leadership and Governance Framework
Act, Act No. 41 of 2003. As jts name speaks for itself, the Framework Act
provided a lega'I framework to deal with provincial peculiarities, which
resulted in the Limpopo Provincial legislature promulgating the Limpopo
Traditional Leadership & Institutions Act No. 6 of 2005, as empowered by
,.
section 104(1 )(b).
[72] Ad Traditional Leadership and Governance Framework Act, Act No. 41
of2003
[72.1] The long title thereto states that -
38
'To provide for the recognition of traditional communities; to provide for the
establishment and recognition of traditional councils; to provide a statutory
framework for leadership positions within the institution of traditional
leadership, the recognition of traditional leaders and the removal from office
of traditional leaders; to provide for houses of traditional leaders; to provide
for the functions and roles of traditional leaders; to provide for di§pute
resolution and the establishment of the Commission on Traditional
Leadership Disputes and Claims; to provide forz a code of conduct; to
provide for amendments to the Remuneration of Public Office Bearers Act,
;
1998; and to provide for matters connec;ted therewith."
[72.2] Since this is Constitutional Legislation, as it is entrenched in section
212 of the Constitution, it contains a Preamble, which reads-
"WHEREAS the State, in accordance with the Constitution, seeks-,,
*to set out a national framework and norms and standards that will define
the place and, role of traditional leadership within the new system of
democratic governance;
*to transform the institution in line with constitutional imperatives; and
'
*to restore the integrity and legitimacy of the institution of traditional
leadership in line with customary law and practices;
[72.3] Recognition of traditional communities is provided in section 2, which
provides -
39
"(1) A community may be recognised as a traditional community if it-
( a) is subject to a system of traditional leadership in terms of that
community's customs; and
(b) observes a system of customary law.
(2) (a) The Premier of a province may, by notice in the Provincial Gazette. in
accordance with provincial legislation and after consultatio n with the
provincial house of traditional leaders in the province, the community
concerned , and, if applicable , the king or queen under whose authority
that community would fall, recognise a community envisaged in
subsection (1) as a traditional community.
(b) Provincial legislation referred,to in paragraph (a) must-
(i) provide for a process cthat will allow for reasonably adequate
" consultation with the community concerned ; and
(ii) prescribe a fixed period within which the Premier of the province ,,
concerned must reach a decision regarding the recognition of a
community envisaged in subsection (1) as a traditional community.
[72.4] Section 11 deals with Recognition of senior traditional leaders,
headmen or headwomen. It provides that -
"(1) Whenever the position of senior traditional leader, headman or
headwoman is to be filled-
( a) the royal family concerned must, within a reasonable time after the need
arises for any of those positions to be filled, and with due regard to
applicable customary law-
(i) identify a person who qualifies in terms of customary law to
assume the position in question , after taking into account
40
whether any of the grounds referred to in section 12 (1) (a),
(b) and (d) apply to that person; and
(ii) through the relevant customary structure, inform the Premier
of the province concerned of the particulars of the person so
identified to fill the position and of the reasons for the
identification of that person; and
' (b) the Premier concerned must, subject to subsection (3), recognise the
;
person so identified by the royal family in accordance with provincial
legislation as senior traditional leader, headman or headwoman, as the case
maybe.
(2) (a) The provincial legislation referred to in subsection (1) (b) must at
least provide for-
(i) a notice in the Provincial Gazette recognising the person identified as
''<
senior traditional le{Jder,,,headman or headwoman in terms of subsection (1);
(ii) a certificate of recognition to be issued to the identified person; and
(iii) the relevant provincial house of traditional leaders to be informed of the
recognition ofa senior traditional leader, headman or headwoman.
(3) Where there is evidence or an allegation that the identification of a person
referred to in subsection (1) was not done in accordance with customary law,
customs or processes , the Premier-
( a) may refer the matter to the relevant provincial house of traditional
leaders for its recommendation; or
(b) may refuse to issue a certificate of recognition; and
(c) must refer the matter back to the royal family for reconsideration and resolution
where the certificate of recognition has been refused .
41
[72.5] Section 12 Removal of senior traditional leaders, headmen or
headwomen, it states that -
"(1) A senior traditional leader, headman or headwoman may be removed
from office on the grounds of-
( c) wrongful appointment or recognition; or
[72.6] Section 21 deals with Dispute and claim resolution. It provides that -
"(1) (a) Whenever a dispute or claim concerning customary law or customs
arises between or within traditional communities or other customary
,
institutions on a matter arising from the implementation of this Act,
members of such. a community and traditional leaders within the
traditional community or customary institution concerned must seek to
resolve the dispute or claim internally and in accordance with customs
before such dispute or claim may be referred to the Commission.
\. '
(b) If a dispute or claim cannot be resolved in terms of paragraph (a),
subsection (2) applies.
(2) (a) A dispute or claim referred to in subsection (1) that cannot be
resolved as provided for in that subsection must be referred to the
relevant provincial house of traditional leaders, which house must seek
to resolve the dispute or claim in accordance with its internal rules and
procedures.
(b) If a provincial house of traditional leaders is unable to resolve a
dispute or claim as provided for in paragraph (a), the dispute or claim
42
must be referred to the Premier of the province concerned, who must
resolve the dispute or claim after having consulted-
(i) the parties to the dispute or claim; and
(ii) the provincial house of traditional leaders concerned.
(c) A dispute or claim that cannot be resolved as provided for in
paragraphs (a) and (b) must be referred to the Commission.
(3) Where a dispute or claim contemplated in subsection (lJ has not been
resolved as provided for in this section, the dispute or claim must be
referred to the Commission."
[72. 7] Section 25 sets out the Functions of the Commission. It states that -
"(1) The Commission operates nationally in plenary and provincially in
committees and has authority to investigate and make
recommendations on any traditional leadership dispute and claim
contemplated in subsection (2).
(2) (a) The Commission has authority to investigate and make
recommendations on-
, (iii) a traditional leadership position where the title or right of the
incumbent is contested;
(iv) claims by communities to be recognised as kingships,
queenships, principal traditional communities, traditional
communities, or headmanships;
(v) the legitimacy of the establishment or disestablishment of 'tribes'
or headmanships;
43
(vi) disputes resulting from the determination of traditional authority
boundaries as a result of merging or division of 'tribes';
(viii) a// traditional leadership claims and disputes dating from 1
September 1927 to the coming into operation of provincial
legislation dealing with traditional leadership and governance
matters;
[72.8] Section 26 deals with the Recommendations of the Commission . It
states that -
"(1) A recommendation of the Commission is taken with the support of at
least two thirds of the members of the Commission.
(2) A recommendation of the Commission must, within two weeks of the
recommendatioo having been made, be conveyed to--r,.
~
b) the relevant provincial government and any other relevant
functi0nary to which the recommendation of the Commission
applies in accordance with applicable provincial legislation in so
far as the consideration of the recommendation does not relate
to the recognition or removal of a king or queen in terms of
section 9, 9A or 10.
(3) The President or the other relevant functionary to whom the
recommendations have been conveyed in terms of subsection (2)
must, within a period of 60 days make a decision on the
recommendation ."
44
[72.9] The insertion of section 26A introduces Committees of the
Commission . It provides that -
"(1) There is [sic] hereby established provincial committees to deal with
disputes and claims relating to traditional leadership.
(2) (a) Each provincial committee contemplated in subsection (1) consists of
as many members as the Premier concerned may determine after
consultation with the Minister and the Commission and such members
are appointed by the Premier, by the notice in the Provincial Gazette,
for a period not exceeding five years. •
(b) The term of office .of committee members must be linked to that of
members of the Commission contemplated in section 23 (1) (a).
,
(c) The committee members of the Commission must have the same
knowledge as the members of the Commission as contemplated in
/
section 23"f1)(a).
<
(6) ,A provincial committee may make final recommendations on all
matter:s delegated to it in terms of 25 (6): Provided that where a
committee is of the view that exceptional circumstances exist it may
refer the matter to the Commission for advice.
(7) The provisions of section 26 (2) (b) apply, with the necessary changes,
to the recommendations of a committee. "
[72.1 O] The legislature in section 28 sought to preserve and to maintain the
status quo within tribes, and to set parameters to regulate a smooth
45
transitional arrangement into the Constitutional dispensation for
traditional institutions. It provides that-
"(1) Any traditional leader who was appointed as such in terms of
applicable provincial legislation and was still recognised as a
traditional leader immediately before the commencement of this Act, is
deemed to have been recognised as such in terms of section 9 or 11,
subject to a decision of the Commission in terms of section 26.
(3) Any "tribe" that, immediately before the commencement of this Act,
had been established and was still recognised as such, is deemed to
be a traditional community contemplated in section 2, subject to -
(a) the withdrawal of its recognition in accordance with the
provisions of section 7; or
(b) a decision of the Commission in terms of section 26 .
. (4) A tribal authority that, immediately before the commencement of this
Act, had been established and was still recognised as such, is deemed
to be a traditional council contemplated in section 3 and must perform
the functions referred to in section 4: Provided that such a tribal
authority must comply with section 3(2) within seven years of the
commencement of this Act."
46
[76) Key to the current issue on appeal is Chapter 6 of the Traditional Leadership
Framework Act,41 of 2003. Chapter 6 thereof in Section 22 established a
Commission on Traditional Leadership Disputes and Claims.
[77) The catchment period for the investigation of disputes by the Commission on
Traditional Leadership Disputes and Claims, as set out in section
25(2)(a)(viii) all traditional leadership claims and disputes dating from 1
September 1927 to the coming into operation of provincial legislation
dealing with traditional leadership and governance matters.
[78) With the Amendment in 2009, Which came into effect in January 2010,
Provincial Committees were established to be delegated by the Commission
on Traditional Leadership Disputes and Claims, which in Limpopo Province
resulted in the ~rE?,mier establishing a Provincial Committee in terms of
section 26A(1'). This Committee colloquially became known as the Kgatla
Commission, taking after the name of the chairperson.
f
[79) The Limpopo Provincial Legislature gave effect to section 212 read with the
framework set out in the Preamble of the Framework Act,2003, and
promulgated the Limpopo Traditional Leadership & Institutions Act, 2005. It
provides that -
47
Ad Limpopo Traditional Leadership & Institutions Act No. 6 of 2005
[79.1] The long title thereof provides as follows -
"Act to provide for the recognition of traditional communities; the
~,t.,.
recognition of traditional councils, the election and appointment of
members of traditional councils, recognition of traditional leaders,· their
removal from office, their roles and functions, recognition of acting
traditional leaders and regents, to provide foclunds of traditional councils
and management thereof,· to provide for payment of allowances for
travelling expenses of members of trc1ditional councils; to provide for
meetings of royal family and traditional councils; to provide for code of
conduct; and for matters connected therewith."
[79.2] The Preamble thereof recorded the following-
"WHEREAS the Constitution recognises -
• the institution, status and role of traditional leadership according to
customary law; and
• a traditional authority that observes a system of customary law;
AND WHEREAS it is necessary to enact provincial legislation within the
framework provided by Traditional Leadership and Governance Framework
Act, 2003 ( Act No. 41 of 2003) in order to provide for matters which are
peculiar to the Province;."
48
[79.3] Section 2 deals with Interpretation and application. It states that -
"(1) This Act is subject to the Framework Act."
[79.4] The implementation of decisions of the Commission is provided for in
section 30, which provides as follows-
"(1) The Premier must, within seven days of receipt of the decision of the
commission in terms of section 26(2).of the Framework Act, refer such
decision to the provincial house Of traditional leaders for its advice on
implementation .
(2) The provincial house of traditional leaders must submit its advice
contemplateg in subsection ( 1) to the Premier within 14 days of
'"' receipt, provided that the Premier may, if he or she deems it
necessary, require the provincial house of traditional leaders to submit
its advice within a specified shorter period.
'
(3) The Premier must implement the decision of the commission within 30
days of receipt of such decision from the commission."
[79.5] Section 33 deals with transitional arrangements. It states that -
"(4) Any tribe that, immediately before the commencement of this Act,
existed under the provisions of any law, is deemed to be a traditional
community established under this Act.
49
(5) A tribal authority or tribal council that, immediately before the
commencement of this Act, existed under the provisions of any law, is
deemed to be a traditional council established under this Act: Provided
that such traditional council must comply with the provisions of section
4 within one year of the commencement of this Act."
[80) The above regulatory framework has been traversed with a view,Jo edify the
discourse around the origin of the various statutory empowerments and the
role of government in the exercise of statutory powers and duties.
[81) The Framework Act, 2003 was substantially amended by Act 23 of 2009.
~
This amendment introduced Provincial Committees, and the fact that the
Commission and Provincial C0mmittees have no authority to make decisions
but only to make recommendations. This development specifically changed
the landscape and plateau of dealing with traditional leadership disputes.
This. must be looked at in the context of the changes that were introduced,
being to remove the power to make decisions from the Commission.
[82) One must pause to note that the only provision in the Limpopo Traditional
Leadership Act, 2005 dealing with anything to do with disputes and the
Commission is in section 30. Except for this section, which does not
empower the Premier to decide in line with the provisions of the Framework
Act, 2003 as amended. It only enjoins the Premier to implement decisions of
50
the Commission in terms of section 26(2), when such power to make
decisions by the Commission has been replaced with 'recommendation'.
[83] The current legislation governing the institution of traditional leadership in
Limpopo Province has not been aligned with the national fran;,ework, thus
causing a discord between the two regulatory frameworks. This cowrt is alive
"
to the provisions of section 2 of the Limpopo Traditional Leadership Act,
2005 which has subjected itself to the Framework Act, 2003.
[84] Further, this court is also mindful of the provisions of section 146 and section
147, which will be addressed herein belo\,o/ in this judgment. This discord is
what has led to the Office oLtfie 'Premier purporting to have acted in terms of
section 30, when the Premier took a decision to recognize Khanyizeni
Ishmael Maswanganyi as a Senior Traditional Leader of a non-existent and
unrecognized traditio~al community.
[85] This then leads this court to return to the question whether the Maswanganyi
was a headman or a senior traditional leader prior to November 1957? From
the archival records referred to herein above it is apparent that at least as
early as in July 1910 when the Assistant Native Commissioner had occasion
to proceed to the area of ground controlled by lndunas Ngobe and
Maswanganyi to inquire into and determine a dispute which had arisen
51
between those two indunas, Maswanganyi was recognized as a headman
or induna."
[86] Further, that in the meeting of Groot Spelenkon, where in it was reported on
11 January 1913 that "When Capt Schiel made this boundary line he
informed lndunas Maswanganye and Nkomo that they woulcf have to be
represented by Hlaneki. These lndunas objected and he ultimately allowed
them to be independent indunas.
11
[87] Furthermore, that on 1 O November 1932 "Minute No. a/5/13/436 of the 24th
ultimo, I have to inform you that itis understood and that the areas at present
occupied by Hlaneki and Maswanganye and their followers were allotted to
them during the days of the South African Republic. The boundaries of their
respective areas ar~ known to these headmen and their followers." .,
[88] That as late as 19th March 1951, one Petros Maswanganye wrote to 'The
S.A Institute of Race Relations
"Dear Sir
With reference to the letter I wrote to you in connection with headman Samuel
Maswanganye and myself in respect of being a leader. It has been investigated by
the Native Commissioner Duiwelskloof on the 16th instant. And all agreed upon the
52
matter that I am the son of Mikhadzani (Maswanganye), the late headman . ... It was
found that he is not the son of my father who was headman before .... "
[89] Further, that at least in the alternative, on 27 March 1951, a letter was
addressed to Petrus Kedonga Maswanganyi, titled "Unofficial headman of
Maswanganyi area.
"I have to advise you that the residents of the above area jn this district ... and I as
their leader in the place of headman Samuel Maswahganye . . You are therefore
requested not to interfere any further in the affafrs of this community, or enter this
district without permission.
VS Liefeldt"
[90] The above quoted archival records demonstrate that at least before
November 1957, the Maswang~nyi's were known as a headmanship. Even
after their objection and ,protest to be placed under the care of the Hlaneki's
in 1912 by. Captain Schiel, who ultimately gave them independent
headmanship.
[91] To the extent that the Maswanganyi had independent headmanship, they
could not have lost chieftainship in November 1957 when they did not have it
for at least some 45years, when they were before Captain Schiel and even
before then in 1910, when the Assistant Native Commissioner visited the
area to investigate a boundary dispute.
53
[92] It is therefore unfathomable how the Kgatla Commission could have come to
the conclusion that the Maswanganyi had lost senior traditional leadership
status in November 1957, when they actually never had it in South Africa in
the first place. This then means it is incongruent for the Kgatla .. Commission
to have found and recommended that the senior traditional leadership status
of the Maswanganyi was purportedly lost in November 1957, and find that it
ought to or should be restored.
[93] This then leads to the next question, if the dispute regarding the loss of
senior traditional leadership status took . place before 1910, alternatively
before 1912, alternatively 9efore 191'3, then the question to be asked is
whether the alleged November 1957 timeline is correct or not? On the face
(
of overwhelming evidence from archival material before 1957, the
Maswanganyi • never had chieftaincy to lose, as they were headmanship long
before the alleged November 1957.
[94] Since the catchment period for the investigation of traditional disputes, by
either the Kgatla Commission or the Nhlapo Commission, was 1 September
1927, which is based on the coming into force and effect after its suspensive
clause in section 37 of the Black Administration Act, 1927, when the
Governor-General issued a Proclamation. Did the Kgatla Commission have
54
the necessary jurisdiction to investigate the alleged dispute relating to the
loss of the Maswanganyi senior traditional leadership status, which did not
occur on or after 1 September 1927.
[95] It is inexorable that the Proclamation of November 1957 defining the area of
jurisdiction of the Hlaneki's did not take away the senior traditional leadership
status of the Maswanganyi, as they did not have it at the time of the issue of
the proclamation. This court is in terms of section 6(2)(a), enjoined to set
aside such decision where the aclministrator who took it
(i) was not authorised to do so by th~ empowering provision, being to deal
with disputes that arose before 1 Septemb~r 1927.
[96] It is therefore clear that in terms of PAJA, if an administrative decision was
based on irrelevant considerations, and relevant considerations were not
taken into account, then such decision cannot escape the consequence of
being set aside in terms of section 6(2)(iii), (v) and (vi). Further, in the event
the, administrative decision was taken arbitrarily or capriciously, then this
court is, in terms of section 6(2)(a), bound to set aside such decision.
[97] The fact that the Kgatla Commission, on the face of archival material which
evidenced that the Maswanganyi only had headmanship, and thus there was
no senior traditional leadership to restore to the Maswanganyi, failed to
55
recognize this glaring fact. Therefore, from the substantive perspective, the
decision of the Kgatla Commission to restore that which was never lost in
South Africa, was vitiated by irrelevant consideration and relevant facts were
ignored and not considered.
[98] Further, the fact that the Kgatla Commission did not have a lost senior
traditional leadership of the Maswanganyi in South Africa, between 1
September 1927 to date, to restore, means that relevant factors such as the
provisions of section 25(2)(a)(vii) were not considered as against the archival
records evidencing lack of senior fraditional leagership in the Maswanganyi.
[99] Now turning to the decision of the Premier, on 3 October 2017, to accept and
approve the findings and recommendations of the Kgatla Commission. The
Premier, is the only authority empowered by both the Framework Act, 2003
''>t
,
and the Limporio Tratiitional Leadership & Institutions Act, 2005 to make a
decision to recognize any traditional leadership position in this province.
[100] . This power to recognize any traditional leadership position in a province
must be exercised in line with the provisions of the empowering legislation,
read with section 3 and 5 of PAJA. This enjoins the Premier to exercise his
power or authority, after compliance with all the requirements set out in each
56
of the provisions of the Framework Act, 2003 and the Limpopo Traditional
Leadership & Institutions Act, 2005.
[101] The Premier is in terms of section 30 of the Limpopo Traditional Le~,dership
& Institutions Act, 2005 only empowered to implement the de~ision of ,the
commission. This authority to implement took away the ability for the Premier
to make any decision, it simply empowered him to 'rubberstamp' the decision
of the Kgatla Commission. We need to emphasize that this is irreconcilable
with the provisions of section 26 of the Framework Act, 2003, which
empowers the Premier to decide, after having received the
recommendations of the Commission.
[102] There are contradicting versions as to which provision and legislation the
Premier accepts, approve~ and recognizes K.I Maswanganyi. In the record
we find a letter signed by Stanley Chupu Mathabatha on 19 March 2019, in
which in paragraph 2 thereof is stated -
'. f hereby inform you that the Limpopo Provincial Committee on Traditional
Leadership Disputes and Claims has considered your claim. I have considered the
findings and recommendations of the said Committee in terms of the Traditional
Leadership & Governance Framework Act, 2003 (Act No. 41 of 2003), as
amended, I in my capacity as the Premier hereby inform you that the claim is
accepted.'
57
[103] In the Appellants Answering Affidavit before the court a quo, there is a
contention that the Premier approved exercising and implementing section
30 of the Limpopo Traditional Leadership & Institutions Act, 2005. This
contention was buttressed by arguments submitted before the full court by
Counsel for the Appellants when he also sought the court to remit .. back to
the Premier to afford her an opportunity to fully comply with section 30.
Although we find the section 30 contention to be more of an afterthought, as
the letter is express, although on the recommendaJion is only a signature
and date by the Premier.
[104] Either way, the Premier h§id to exercise his powers invoking a statutory
empowering provision, ,which has a set procedure and requirements. We
start with the pr<;>Visions of the Framework Act, 2003, which section 26(3)
provides that,-
"(3) The President or the other relevant functionary to whom the
recommendations have been conveyed in terms of subsection (2) must,
within a period of 60 days make a decision on the recommendation."
[105] In this matter the recommendation by the Kgatla Commission was made on
29 May 2017. This means the Premier had 60days from 20 May 2017 to
make a decision. The Kgatla Commission report is signed by the Premier
58
without indicating whether he approves or does not approve, on 19 March
2019. This is more than one year and 9months and 20days after the Kgatla
Commission's recommendation. This is unequivocally contrary to section
26(3) of the Framework Act, 2003.
[106] Now going to the provisions of section 30 of the Limpopo Traditional
Leadership & Institutions Act, 2005, as claimed by the Appellants that the
l
Premier acted in terms of section 30. This section entails a three step
decision process, namely -
(a) Referral within 7 days of receipt of Commission's decision to the
Provincial House of Traditiona} Leaders for advice, section 30(1 );
(b) A Report within 14 days of referral of decision from the Provincial
House of Traditional Leaders for advice, section 30(2);
(c) A directive to irnpJement the decision of the Commission.
[107] Counsel for the ,Appellant was quizzed and correctly conceded that there
#
was no referral to the Provincial House of Traditional Leaders for advice as
contemplated in section 30(1 ). This omission has far-reaching implications
on the jurisdictional factors required to invoke section 30.
[108] Further, based on the concession of non-compliance with section 30(1 ),
Counsel for the Appellant had to accept that in the Record of Proceedings,
59
which forms part of the record of appeal, there is no report from the
Provincial House of Traditional Leaders as contemplated in section 30(2).
Hence, he submitted that the proper cause if for the court to remit the matter
back to the Premier to fully comply with section 30.
[109] It is trite that the provisions of section 30 require a chain reaction, meaning
there is a chain of events, which have a domino effect on one another to
arrive at the final action being to implement the decision of the Kgatla
Commission as enjoined by section 30(3). In the absence of compliance with
the peremptory requirements of section 30, the Premier could not exercise
the powers in section 30 to · implem~nt the decision of the Kgatla
Commission.
[11 O] On this score, the purported decision of the Premier to implement the
decision of the Kgatla Commission, when he signed the report on 19 March
2019, and to issue Ishmael K Maswanganyi with a letter of acceptance of the
claim for the restoration of the senior traditional leadership of the
Maswanganyi is flawed and stands to be reviewed and set aside.
[111] The elephant in the room now is what must we, as this full court do with the
decision that has been reviewed and set aside. In paragraph 48 of the
Appellants' Supplementary Heads of Argument, Counsel submitted that -
60
'We submit that it would be fair for all parties for the matter to be remitted back to
the Commission.'
[112] The law regarding reviews in terms of PAJA, remittal and substituti:on of the
decision of the court for that of the administrator is settled. This is governed
by section 8, which provides that -
"8. Remedies in proceedings for judicial review
(1) The court or tribunal, in proceedings for judicial review in terms of section 6 (1),
may grant any order that is just and equitable, including orders-
(c) setting aside the administrative action and-
(i) remitting the matter for re'consideration by the administrator, with or without
directions; or '
(ii) in exceptiQnalcases-
( aa) substituting or varying the administrative action or correcting a defect
resulting from the administrative action; or
(bb) directing the administrator or any other party to the proceedings to pay
compensation;
(d) declaring the rights of the parties in respect of any matter to which the
administrative action relates;
61
[113] In Gauteng Gambling Board v Silverstar Development Ltd and Others2,
Heher JA, at paragraph 28, provided guidance on what constitutes
exceptional cases as follows -
[114]
"A case is exceptional when, upon a proper consideration of all the relevant facts, a
court is persuaded that a decision to exercise the power should not be left tp 'the
designated functionary. How that conclusion is to be reached is not statutorily
f
ordained and will depend on established principles informed by the constitutional
imperative that administrative action must be lawful, reasonable and procedurally
fair".
The Supreme Court of Appeal, set a criteria that the following factors must
'
exist for a matter to constitute an exceptional case : (a) 'it would serve no
purpose to remit the matter to th_e~ administrative body concerned because
the end-result is a foregone conclusion (foregone conclusion); (b)' it is more
than likely that further delay would cause undue prejudice to the other party if
the matter is remitted'( delay); (c) 'there is a reasonable apprehension of
bias or incompet~nce on the part of the decision-maker'(bias or incomplete);
(~) 'the court is in as good a position as the decision-maker to make the
decisicm'(in as good a position as administrator) and (e) 'there is a likelihood
of the decision-maker not applying his or her mind fairly or at all' (failure to
apply mind).
2 2005 (4) SA 67 (SCA) .
62
[115] In order to assess whether the court a quo erred in not remitting the decision
back to the Premier, this court must investigate the four elements of the
settled criterion in this matter as follows-
[116] Is the end result is a foregone conclusion such that remittal would be a 'mere
formality' or 'waste of time' given the inevitability of the outcome;3
[116.1]The question in this matter is whether the dispute relate to the loss of
'
Maswanganyi senior traditional leadership which was before 1
September 1927, is a foregone conclusion? The answer is a
resounding yes. This is buttressed by the concession by the
Appellants' counsel that the Masw~nga~yi lost their senior traditional
leadership in 1894 upon the arrival of the Hlanekis. This then means
that the Kgatla Comrni_ssion lacked the necessary jurisdiction to
adjudicate over the Maswanganyi restoration claim or dispute.
[116.2] Further that throughout from 1910-1951 archival records, there is
evidentiary material which demonstrate that before November 1957
the Maswanganyi's were a headmanship or indunas. This then
means that the Kgatla Commission erred and misdirected itself in its
adjudication over the Maswanganyi restoration claim or dispute, when
3 Johannesburg City Council v Administrator, Transvaal and Another 1969 (2) SA 72 (T)('JCC') at 76E-G; Baxter (note
11 above) at 682.
63
it found that Maswanganyi lost headmanship which ought to be
restored.
[116.3] Schutz JA in Phambili Fisheries, had occasion to consider the
provisions of section 33, and referred with approval the Constitutional
Court judgment of Bel Porto as follows -
'[46] ... Section 33(1) of the Constitution enjoins that all administrative action
must be 'lawful, reasonable and procedurallyvfair'. The common law and
sections 3 to 6 of PAJA elaborate and give content to these standards. They
are not new. As was stated by, Chaskalson CJ in Bel Porto School
Governing Body and) Others v Premier, Western Cape, and Another [ 2002]
ZACC 2; 2002 (3) SA 265 (CC) at 292, para [87]:
'The role of the Courts has always been to ensure that the administrative
process is conducted fairly and that decisions are taken in accordance with
the law and consistently with the requirements of the controlling legislation.'
[116.4] The decision of the Kgatla Commission to investigate the claim for
restoration of Maswanganyi senior traditional leadership, which was
lost long before 1 September 1927, was not in accordance with the
provisions of section 25(2)(a)(viii) and the requirements of the
Framework Act, 2003.
64
[116.5] Further the decision to hold an inspection in loco, and to listen to
further evidence, in the absence of the Hlaneki's whom it was
confirmed were an interested party. Also to hold an inspection in loco
and hear evidence relating to the territory with included other
headmen's villages without the headmen being present was a
violation of the principle of fairness. It was also not in line with the
well established principle of audi a/teram partem.
[116.6) The question is also whether it is a foregone conclusion that remittal
to the Kgatla Commission of the investigation of the restoration of
senior traditional leadership was erroneous? The answer is yes,
factually, the Kgatla pommission could not restore that which was not
lost because of the Black Administration Act 38 of 1927, as the
mischief s0ught to be investigated and remedied was actions that
took place within the institution of traditional leadership as a result of
that legislation.
[116. 7] The Maswanganyi never had any senior traditional leadership prior to
1 September 1927. Therefore, there could not have been any loss of
Maswanganyi senior traditional leadership. If one is for a moment to
accept the submission by the Appellant's Counsel that it was lost in
1894 when the Hlaneki's arrived in the Klein Letaba area, then they
65
did not lose their status because of the Black Administration Act 38 of
1927.
[116.8] Another complicating factor is that the Kgatla Commission, as a
statutory body, was time-linked. It existed for a period of five years as
was contemplated in section 26A(2)(a) which stated that -
'(a) Each provincial committee contemplated in subsection,(1) consists of
as many members as the Premier concerned may determine after
consultation with the Minister and the Commission and such members
are appointed by the Premier, by the notice in the Provincial Gazette,
for a period not exceeding five,,ye~rs.'
[116.8] All the provincial committees .ceased to exist due to effluxion of
•
time, this included the Kgatla Commission. To make matters
worse, the Khoisan 'Act, 2019, Parliament appreciated that the
Commission on Traditional Leadership Disputes and Claims had
,dealt with its mandate and finished and the chapter is closed.
Parliament, specifically in section 59(1 ), provided for dispute
'
which were dealt with by the Commission on Traditional
Leadership Disputes and Claims are not to be dealt with in
section 59 dealing with disputes. This means Parliament ousted
the Premier's appointing a provincial investigative committee, to
reinvent the wheel and investigate disputes that were
66
investigated by the Commission on Traditional Leadership
Disputes and Claims.
[117] Was the remittal of the decision to restore the Maswanganyi senior
traditional leadership status a mere formality? The answer is a resounding
YES. This would hold, given the factual disposition that the claim of loss of
Maswanganyi senior traditional leadership status predates 1 September
1927. Further, that there was no Maswanganyi senior traditional leadership
status lost as a result of the Black Administration Act No. 38 of 1927 that
needed to be investigated or that ought to be restored.
',
[118] Was the remittal a waste of time? ~he answer is in the affirmative, there was
no fair hearing, as a result of the botched inspection in loco.
[118.1] The investi9ation of the Maswanganyi senior traditional leadership
status was not authorised by the empowering provision. This is so
'because the investigation of the claim for restoration of Maswanganyi
senior traditional leadership which was lost long before 1 September
1927, was not in accordance with the provisions of section
25(2)(a)(viii) and the requirements of the Framework Act, 2003.
67
[118.2] Further, the Kgatla Commission did not implement customary law as
it applied at the time, given that it sought to restore Maswananyi
senior traditional leadership status, which did not exist according to
the records which date back to 1910-1951, yet the allegation was that
it was lost in November 1957.
[118.3] Furthermore, remittal was a waste of time since the Kgatla
Commission had long ceased to exist and the provisions of section
59 had barred the Premier from appointing an investigative
committee for matters which were dealt with by the Commission on
Traditional Leadership Disputes and Claims.
[119] Was the outcome inevitable? The answer is a resounding YES, this is given
that, from a proc~dural .point of view, there was no compliance with either the
provisions of section 3 (2), (3) and (4) of PAJA by the Kgatla Commission.
[119.1] Further, the Premier in deciding to appoint Khayizeni Solomon
Maswanganyi, failed to follow the provisions of section 12 of the
Limpopo Traditional Leadership & Institutions Act, 2005.
[119.2] Further, the Premier in purporting to act in terms of section 30, failed
to comply with the procedure as set out in section 30(1) and (2) of the
68
Limpopo Traditional Leadersh1p & Institutions Act, 2005. Thus,
contravened the provisions of section 3(4) of PAJA.
[119.3] Also from a substantive point of view, the Maswanganyi senior
traditional leadership status was never lost as a result ,of the Black
Administration Act, No.38 of 1927 for it to be restored. The
Maswanganyi were a headmanship or indunas long before 1
September 1927 and even after 1927 but before the alleged
November 1957.
[120] There is a delay causing unjustifiable prejudice to the affected party,..4
The decision to restore the Maswanganyi senior traditional leadership status
when there was none to start with, resultantly placing some 5 other villages
and their headman~hip under the Maswanganyi senior traditional leadership,
C
is prejudicial to the Hlanekis and the headmen appointed by the Hlanekis in
' respect of the Dflingidzingi, Bode, Nwa-Makwena and Basani villages. Any
remittal will cause a delay in the return to the Dzingidzingi, Bode, Nwa-
#
' Makwena and Basani villages to the rule and authority of the Hlanekis.
Further, it is prejudicial to the Hlaneki appointed headmen, as it is the Royal
Family of the Senior traditional leader that appoints headmen. The
appointment of the Maswanganyi senior traditional leadership Maswanganyi
4 M v Minister of Home Affairs and Others [2014] ZAGPPHC 649 at paras 166 and 175- 176.
69
senior traditional leadership resulted in the removal of the Hlaneki appointed
headmen without following section 13 of the Limpopo Traditional Leadership
Act, 2005 in respect of Dzingidzingi, Bode, Nwa-Makwena and Basani
villages. This resulted in the reduction of the jurisdiction of Hlanekis and to
remit will cause a delay in restoring the status quo ante.
[121] Bias or incompetence on the part of the administrator is established
such that 'it would be unfair to require the applicant to submit to the
same jurisdiction again'.
[121.1] In this matter we have noted/thafthe Kgatla Commission last heard
oral evidence and received evidence on 20 August 2015 and advised
the parties that it would make a recommendation in due course.
Surprisingly, -on 10 June 2016, the Kgatla Commission travelled to
Maswanganyi village, where it purportedly held an inspection in loco.
The most notable in this record of the inspection in loco is the
question on page 1110, which is the question by the Commissioner -
'Before we proceed, is there anyone who is a chief that you have
invited? Joe answers: Yes, headman. Commissioner ask
Headman? Joe answers: Yes, there is no hosi'
[121.2) This question is clearly directed at the one side of the Applicant,
being that if Khayizeni Ishmael Maswanganyi. Intriguingly, the other
70
claimant is not part of the inspection in loco, being Willy Mbhazima
Maswanganyi. Notably, the Kgatla Commission seem to be dealing
with the claimant group of Joe Maswanganyi only in the inspection in
loco. Why is the other claimant Willy Mbhazima Maswanganyi not
part of the inspection? Was the Willy Mbhazima Maswanganyi
claimant group informed of the inspection in loco? ,
[121.3] The Kgatla Commission does not seem to be asking its secretariat to
establish if it has executed its directive or instruction to invite parties,
namely, the Hlanekis, and the Willy Mbhazima Maswanganyi claimant
group. Instead they are asking Joe Maswanganyi, if there is anyone
who is chief that he has invited? The Kgatla Commission seems to
either have abdicated hs responsibility or alternatively, delegated its
responsibility to one of the parties, to the exclusion of the Hlanekis,
and the Willy Mbhazima Maswanganyi claimant group. This, for us,
whiffs of bias, and lack of objectivity on the part of the Kgatla
Commission.
[121 .4] Further, the failure of the Kgatla Commission to realize that the claim
for restoration relates to Maswanganyi senior traditional leadership
status which was lost before 1 September 1927. This clearly fell
outside of the Commission's scope or catchment period and therefore
ought to have declined to investigate the claim or the dispute for
restoration of Maswanganyi senior traditional leadership status.
71
[121.5] The Kgatla Commission refused to see and to accept documentary
evidence in the form of archival material submitted by the Hlanekis
that show that the Maswanganyi senior traditional leadership status
was never lost in November 1957 as it was claimed. Instead, the
records showed that at least as early as 1910, 1912, 1932, 1934,
1938 and 1951 been the latest, the Maswanganyi's were recorded as
a headmanship or as indunas.
[121 .6] The above exposition points to one conclusion being that of bias or
incompetence on the part of the Kgatla. Commission, and hence 'it
would be unfair to require the Hlanekis to submit to the same
jurisdiction again.
[122. 7] On the part of the Premier, the situation is grave, as there is a claim
to have acted in terms of the Framework Act, 2003 which is to be
read with section 30 of the Limpopo Traditional Leadership Act, 2005.
Sadly, ' the requirements of section 30 were not met regarding the
appointment of Solomon Khayizeni Maswanganyi.
[121.8] The Kgatla Commission's report, in its recommendation, identified a
specific person with a specific identity number for restoration of
Maswanganyi senior traditional leadership to be granted. The
Premier, in the letter dated 19 March 2019 addressed to Khayizeni
Ishmael Maswanganyi, informed him that his claim is accepted. The
appointment of Khayizeni Solomon Maswanganyi is not what was
72
recommended, and any change, that occurred on 18 September
2020 when the Premier formally recognized him, is not an
implementation in terms of section 30.
[121.9] Despite a diligent search in the record, there is no resolution of the
'Maswanganyi royal family' regarding the appointment of ·solomon
Khayizeni Maswanganyi, as a substitute for the recommended
Khayizeni Ishmael Maswanganyi. This is not in line with section 12 of
"
the Limpopo Traditional Leadership & Institutions Act, 2005. Instead,
this is more of a demonstration of overzealousness by the Premier to
appoint Khayizeni Solomon Maswangar,yi without the requirements of
section 12, read with section 30~ The removal of the Hlaneki
appointed headmen in respect of Dzingidzingi, Bode, Nwa-Makwena
and Basani villages in the Greater Giyani Local Municipality who were
removed without co_mpliance with section 13.
[121.1 0] The above exposition, points to one conclusion being that of bias
or incompetence on the part of the Kgatla Commission, and the
Premier hence 'it would be unfair to require the Hlaneki's, the Hlaneki
I
appointed headmen removed without compliance with section 13 to
submit to the same jurisdiction again.
[122] Or where the court finds itself in 'as good a position' as the
administrator to take the decision itself.
73
[122.1] The decision of the Kgatla Commission was vitiated with procedural
and substantive irregularities. Although not dealt with by the court a
quo in its judgment, the decision of the Premier, was equally marred
with the same tar brush, and worsened by non-compliance with
section 12, 13 and 30 of the Limpopo Traditional Leadership &
Institutions Act, 2005.
[122.2] This court is in as good a position as the administrator to return the
status quo ante, as the decision could not be remitted since the
Kgatla Commission ceased to exist. Fur;ther, given that the Premier
could not take any decision if the jurisdictional factor of section 30,
being the Kgatla Commission's rec9mmendation, does not exist.
[123] In the circumstances, we .find that in this matter exceptional circumstances
existed to warrant the court a quo to substitute its decision for that of the
Premier. This is - so from a procedural perspective, that the Kgatla
Commission failed to observe that the dispute arose before 1 September
1927, and thus had no jurisdiction to investigate the dispute. Further, the
Kgatla Commission failed to observe the most cardinal of rules, and
Constitutional imperative of giving the Hlanekis a fair hearing and observing
the audi a/teram partem.
74
[124] Furthermore, the Premier exercised powers in terms of section 12(1 )(b)
without due compliance with the peremptory procedure of section 12(1 )(a) of
the Limpopo Traditional Leadership & Institutions Act, 2005. The record does
not reflect a minuted resolution of the 'Maswanganyi royal family', and a
recommendation from the Maswanganyi royal family for the appointment of
Khayizeni Solomon Maswanganyi, which prompted the Premier on 18
September 2020 to recognize Khayizeni Solomon Maswanganyt as a senior
traditional leader.
[125] Secondly, from a substantive perspective, in that the Kgatla Commission
~
misdirected itself, and failed -to consider archival and evidential material
'
submitted by Hlanekis that the Maswanganyi's as early as 1910, 1912, 1913,
1932, 1934, 1938 and 1'951 were recorded as a headmanship. Further, that
the MaswangwanyFs leadership was not a Chieftaincy or Captainship as was
'
colloquially referred to during the two epochs, being the colonial and the
apartheid epoch.
[126] The remaining issue is the contention of costs, the First to Third
Respondents have prayed for costs on an attorney and client scale, including
costs of two counsels. The court a quo was also confronted with a similar
application and almost similar conduct and repugnant failure to comply with
Rules of court ordered costs on a punitive scale.
75
[127] As a starting point, one is of the considered view that given the factual
disposition and archival records in this matter, it was axiomatic that the
Kgatla Commission had looked at the wrong considerations in finding and
recommending the restoration of senior traditional leadership status which
did not exist. Worse, restoration of Senior Traditional leadership without the
jurisdictional factor of having a recognized traditional community to restore to
status.
[128] The criteria for determining the issue of costs in abortive proceedings have
always depended on whether or not it is clear or ought to have been clear
that the proceedings (in this instance prosecuting a defence) in question
would have been abortive. See: Engineering Management Services (Pty)
Ltd v/s South Cape C.orporation (Pty) Ltd 1979(3) SA 1341; See also:
Schlesinger v/s Schlesinger 1979(3) SA
[129] This court believes that this appeal constitutes abortive proceedings on the
part of the Appellants for a myriad of reasons as has been demonstrated
herein above. The Appellants were fully aware that the Kgatla Commission
committed serious irregularities, as pointed herein above, namely-
76
[129.1] Procedural irregularities in investigating when they did not have
jurisdiction to investigate the restoration of senior traditional
leadership status which was lost before 1 September 1927.
Further, holding an inspection in loco and not inviting the
Hlanekis, as well as Willie Mbazima Maswanganyi's group.
[129.2) When the Premier recognized Khayizeni Solomon Maswanganyi
on 18 September 2020 without the requirements of section 12
and 30 being met. When the Premier appointed Maswanganyi
headmen without compliance with section 13 and 12 for the
Dzingidzingi, Bode, Nwa-Makwena and Basani villages.
[129.3) Substantive irregularities, when they ignored archival material
which demonstrated that the Maswanganyi's were a
headmanship or indunas, instead of senior traditional leadership,
and therefore there was nothing to restore.
[130) In Public Protector v South African Reserve Bank 2019 (6) SA 253 CC. the
C_onstitutional Court stated the following:
" Costs on an attorney and client scale are to be awarded where
there is fraudulent, dishonest, vexatious conduct and conduct that
amounts to an abuse of courl process. As correctly stated by the
LabourAppealCourl-
77
'(t)he scale of attorney and client is an extraordinary one which
should be reserved for cases where it can be found that a litigant
conducted itself in a clear and indubitably vexatious and
reprehensible [manner]. Such an award is exceptional and is
intended to be very punitive and indicative of . extreme
opprobrium
[131) This court finds that the conduct of the App>ellants throughout these
proceedings has not been honest with the court. There was vacillation
between the fact that the Premier made a decision in terms of the
Framework Act, 2003 and sectioq 30 of the Limpopo Traditional Leadership
& Institutions Act, 2005.
[132) Even in the affidavit deposed to by the Director General, Mr Nape
Nchabeleng there wer dishonest claims that the Maswanganyi's had always
been senior traditional leaders instead of headmen, when that was devoid of
the truJh and contrary to Kgatla Commission's record of decision.
[133) There are claims that the State Attorney Bloemfontein Ms Cronje did not
inform the State Attorney Polokwane of the Supreme Court of Appeal
Petition outcome, when that was untrue and the Respondents had to provide
78
proof of such transmission dated 22 September 2023 in the Answering
Affidavit to the reinstatement and condonation application . This latter
conduct is, in our view vexatious conduct and conduct that amounts to an
abuse of court process.
[134] Further abuse of court process was seen, when the Appellants; despite
being notified in Rule 30 and correspondence by the Respondents that the
appeal record was not compliant, elected not to remedy the complaint. Only
on the day the matter was to be heard did the AppeUants approach the court
with a complaint that a record which they ,had filed was not complete and the
appeal hearing could not proceed with the current record in the state of
incompleteness.
[135] Despite being afforded time to correct the record, the Appellants filed a
reduced record with omission of some of the documents which had to be
filed by the Respondents in their Supplementary Heads of Argument. This
resulted in this court having to shuttle between the appeal record of 10
November 2025 and the appeal record filed 14 October 2024, to avert a
situation wherein the court did not have sight of or consider some pertinent
documents and averments in the papers.
79
[136] This court's opprobrium needs to be expressed, and the only way this
censure could be expressed is in the form of an award for costs. This is also
to ensure that the poor Respondents who are ordinary members of the
public, are not caused to be out of pocket by the negligent failures of
government. Paired with a sense of lackadaisical conduct of the attorney
who has no care whatsoever for the client's matter and to the court's
inconvenience by his conduct. We believe that it is about time that this court,
does not allow state parties who litigate with the public purse to continue with
their laissez-faire attitude because they are ,not going to shoulder the costs
attendant thereto.
[137] We have noted that the costs· of>tt,e petition to the Supreme Court of Appeal
were costs in the appeal. The conduct of the Appellant even in the Supreme
Court of Appeal has not,be:.en exemplary. Further, noted that there were also
untruths in the appeal papers by the Appellants, we see no reason why the
Appellqnts shoul;p not be ordered to pay the costs of the Supreme Court of
Appeal on a punitive scale too.
[138] In the circumstances, the following order is granted -
1. The application for condonation is dismissed;
2. The application for reinstatement is dismissed;
I concur,
80
3. Despite the dismissal, the court in the interest of justice proceeded
to hear the application on the merits, and came to the conclusion
that the appeal stands to be dismissed with costs.
4. The Registrar of the Court is directed to cause this order to be
served and brought to the attention of the Premier of <Limpopo
Province, the Director General, the MEC of COGHSTA, the Head
of Department of COGHST A, within 7 days of this order;
5. The Appellants are ordered to pay the costs of this appeal
including costs of the petition to the Suweme Court of Appeal,
such to include costs of ~o Counsel on an attorney and client
scale, where so employed)such costs to be calculated at scale C.
I
. ~ .M MASILO AJ
ACT~ JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
l E HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
I concur,
APPEARANCES:
FOR APPELLANT
Instructed by
\
Instructed by
81
K.L. LAY AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
ADVT. NCONCWANE SC
with ADV M KGATLA
State Attorneys: Polokwane
per email: TMasete@justice.gov.za
MChuene@justice.gov.za
ADV HAYENGA SC
with ADV GROENEWALD SC
Hlaneki & Hlaneki Inc Attorneys
Per email: Hlanekiattorneys@gmail.com
per email: mbewu@icloud.com