IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
BAPHALANE BA MANTSERRE TRADITIONAL COUNCIL
SINAH. M DIALE
TSHOLOFELO. P MOLEFE
THALITA. S MOABI
MICHEAL. S TAU
NELSON. P MPELA
SELLO. L MOGALE
MOLATLHAGI. J RAMOKOKA
BAPHALANE BA MANTSERRE
COMMUNITY DEVELOPMENT TRUST
(Registration No. IT 7821/02)
SELLO S. RAMOKOKA
ITSHEKENG A. MAITSAPO
DINEO P. PETE
ANNAH M. RANGWETSI
Reportable
Case No: 2409/2025
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
Fifth Applicant
Sixth Applicant
Seventh Applicant
Eighth Applicant
Ninth Applicant
Tenth Applicant
Eleventh Applicant
Twelfth Applicant
Thirteen applicantt
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THABO S. SELEKE
and
KGOSIMANOTSHEJAMESE.RAMOKOKA
OUPA. J RAMOKOKA
SAMANCO CHROME LIMITED
LIMBERG
ANGLO AMERICAN
SIYANDA BAKGATLHA PLATINUM MINE (Pty) Ltd
MEC FOR THE NORTH WEST DEPARTMENT
OF COOPERATIVE GOVERNANCE,
HUMAN SETTLEMENTS AND TRADITIONAL AFFAIRS
PREMIER OF THE NORTHWEST PROVINCE
PHETO PETRUS RAMOKOKA
Corum: MORGANAJ
Heard: 23 February 2026
Fourteen Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Delivered: This judgment was circulated electronically to the parties'
representatives by email. The date and time of hand-down are deemed to be 10:00
am on Thursday, 28 August 2026.
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JUDGMENT
MORGANAJ
[1] This application arises from a dispute concerning the appointment, status and
functions of a Kgosana within the Baphalane Ba Mantserre community. The applicants
seek both final and interim interdictory relief against the first respondent, the Kgosi,
and the second respondent, Mr Oupa Joseph Ramokoka. The second respondent was
appointed or designated as Kgosana by the first respondent. The applicants contend
that the appointment was not made in accordance with the applicable customary and
statutory processes and that the second respondent has not been lawfully recognised
as Kgosana.
[2] In substance, the applicants seek orders:
a) interdicting the second respondent from representing himself as the lawfully
appointed and recognised Kgosana of the Baphalane Ba Mantserre
community;
b) interdicting the first and second respondents from interfering with the affairs
of the Traditional Council and the Community Development Trust;
c) appointing the ninth respondent, Mr Pheto Petrus Ramokoka, as interim
Kgosana pending investigation and the appointment of a lawful successor;
and
d) directing the opposing respondents to pay the costs of the application on
the terms set out in the notice of motion.
[3] The first, second and ninth respondents oppose the application.
[4] The applicants do not challenge the lawfulness of the first respondent's own
recognition or position as Kgosi. Their challenge is directed at the appointment or
purported recognition of the second respondent as Kgosana, and at conduct allegedly
undertaken pursuant to that status.
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[5] This application extends beyond the second respondent's status. The
applicants allege that the first and second respondents have interfered with the affairs
of the Baphalane Ba Mantserre Traditional Council, the Baphalane Ba Mantserre
Community Development Trust, mining stakeholders and community recruitment
processes. They contend that this conduct has caused continuing harm and warrants
both prohibitory relief and the installation of an interim leader.
[6] The central questions for me to determine are whether the applicants have
established a proper basis for final or interim interdictory relief; whether the disputes
concerning traditional leadership can be determined on the papers; whether this Court
may appoint the ninth respondent as interim Kgosana; and what costs order should
follow.
FACTUAL BACKGROUND
[7] The Baphalane Ba Mantserre community relocated to Mantserre from
Schildpadnest following land-claim disputes. A successful land claim resulted in the
restoration of the farm Schildpadnest to the community. The restored land is held
through the Baphalane Ba Mantserre Community Development Trust ("the Trust").
[8] During or about June 2022, the Traditional Council and the Trust concluded a
collaboration agreement concerning aspects of community development and
economic participation, including engagement with mining stakeholders. The
agreement regulates the relationship between its parties. It does not constitute a
source of customary or statutory power to appoint, recognise or remove a traditional
leader.
[9] The applicants allege that, during November 2022, the first respondent
appointed the second respondent as Kgosana without proper consultation with the
royal family and without compliance with the applicable customary and statutory
processes. They further allege that the appointment was not recognised or confirmed
by the competent provincial authority.
[1 0] The applicants allege that, notwithstanding the disputed status of his
[1 0] The applicants allege that, notwithstanding the disputed status of his
appointment, the second respondent has held himself out as Kgosana in engagements
with mining companies and other stakeholders. He is also alleged to have participated
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in unauthorised protests and attempted to influence recruitment and community
processes contrary to the collaboration agreement.
[11] The first and second respondents dispute the material allegations of unlawful
interference and misconduct. Those disputes concern, amongst other matters, what
was said to stakeholders, the authority under which engagements occurred, the
character and purpose of community gatherings, and the extent to which the first or
second respondent interfered with the administration of the Trust.
[12] The applicants rely also on an investigation report prepared under the auspices
of North West Department of Cooperative Governance Human Settlements and
Traditional Affairs (COGHSTA). The report makes adverse findings concerning
aspects of the administration of the Traditional Council. Its principal focus, however, is
not the validity of the specific appointment impugned in this application. Nor does it,
without more, prove the particular acts of interference on which the interdictory relief
depends.
[13] The application initially came before Court as an urgent application and was
struck from the roll for want of urgency. It later proceeded as an opposed application
in the ordinary course.
[14] I now turn to address the legal principles applicable in determining the issues
raised in this matter.
APPLICABLE LEGAL PRINCIPLES
Motion proceedings and factual disputes
[15] Where final relief is sought on motion and genuine disputes of fact arise, the
rule stated in the classical case of Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Ply) Ltd 1 is applicable. Final relief may ordinarily be granted only if the facts alleged
by the respondents, together with the admitted facts in the applicants' affidavits, justify
the order. A denial that is not real, genuine or bona fide does not create a material
dispute, and a version that is far-fetched or clearly untenable may be rejected on the
papers.
1 1984 (3) SA 623 (A) at paras 634E-F.
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[16] Also, the related ever important and classical principle that a litigant who should
reasonably foresee a material dispute of fact should not ordinarily institute motion
proceedings to obtain final relief dependent on resolving that dispute in its favour finds
application in this matter. 2
[17) The existence of a dispute does not automatically terminate the enquiry. The
Court must identify whether the dispute is material to the relief sought, determine
whether it is genuine, and decide whether the matter can be resolved by applying the
motion-proceedings rule. Referral to oral evidence under Uniform Rule 6(5)(g) remains
discretionary and is not available merely to repair a case that was inadequately made
out in the founding papers.
Final and interim interdicts
[18] The requirements for a final interdict are trite and have been settled. Briefly,
they entail the applicant(s) having to show or demonstrate a clear right; an injury
actually committed or reasonably apprehended; and the absence of similar protection
by another adequate ordinary remedy.3
[19) Interim relief requires, in general, a prima facie right. though open to some
doubt; a reasonable apprehension of irreparable harm if relief is refused and the
applicant ultimately succeeds; a balance of convenience favouring relief; and the
absence of another satisfactory remedy. These requirements are considered together,
in light of the nature of the right and the practical consequences of granting or refusing
relief.
Traditional leadership and legality
[20] Traditional leadership is recognised subject to the Constitution,4 applicable
customary law and legislation. The exercise of statutory public power must have a
source in law. A court may review or declare unlawful an exercise of public power
where a proper case is pleaded, and the relevant decision and decision-maker are
2 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Ply) Ltd 1949 (3) SA 1155 (T) at para 1162.
3 Setlogelo v Setlogelo 1914 AD 221 at para 227.
3 Setlogelo v Setlogelo 1914 AD 221 at para 227.
4 Section 211 (1) of the the Constitution of the Republic of South Africa , 1996.
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before it. But litigants cannot confer statutory authority on a person or institution where
legislation withholds it. 5
The Traditional and Khoi-San Leadership Act6, read with the North West Traditional
Leadership and Governance Act7 (the Provincial legislation) and customary law
principles, provide the relevant institutional framework. The Provincial legislation also
establishes mechanisms for investigating and resolving disputes relating to Bogosi
and Bogosana, and assigns functions to traditional structures and provincial executive
authorities. 8
[21) On this topic, the Constitutional Court held that courts must distinguish between
official statutory recognition, customary status and cultural identity. Statutory
recognition of one traditional authority does not, without more, extinguish every
expression of customary identity or leadership. An interdict restricting the use of
traditional terminology or participation in community affairs must therefore be clear,
properly founded and no wider than necessary. 9
APPLICATION OF LAW TO THE FACTS
The second respondent's status
(22) The first prayer in the applicants notice of motion is framed as an interdict
against the second respondent misrepresenting himself as the lawfully appointed and
recognised Kgosana. The applicants were required to establish the right that they seek
to protect, the unlawfulness of the representation complained of, actual or reasonably
apprehended injury, and the absence of another adequate remedy.
(23) There is a distinction between an appointment or designation made within
traditional structures and official recognition or confirmation by the competent statutory
authority. It does not follow merely from an allegation that official recognition is absent
5 Moroka v Premier of the Free State and Others [2022) ZASCA 34 (31 March 2022) at paras 16 and
72.
6 The Traditional and Khoi-San Leadership No 3 of 2019.
7 North West Traditional Leadership and Governance Act No 2 of 2005.
7 North West Traditional Leadership and Governance Act No 2 of 2005.
8 See Pilane and others v Premier of the North West Province and others (UM127/2020) [2023]
ZANWHC 103 (4 July 2023).
9 Pilane v Pilane (2013] ZACC 3; 2013 (4) BCLR 431 (CC) at para 34.
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that every use by the second respondent of the title Kgosana is unlawful. The precise
legal effect depends on the applicable customary process, the governing legislation,
the act actually performed by the first respondent, and the capacity in which the second
respondent thereafter acted.
[24] The applicants have not sought in the notice of motion an order reviewing and
setting aside an identified administrative decision by the competent provincial
functionary. Nor do they seek a mandatory order compelling the Premier, MEC or
another responsible authority to exercise a statutory power. The relief instead asks
this Court, through an interdict directed principally at the second respondent, to
determine a contested leadership dispute without the complete statutory decision
making process being placed before it.
[25] The evidence placed before Court does not establish, with the clarity required
for final relief, the full customary process applicable to the appointment, the steps that
were taken or omitted, the legal character of the first respondent's act, and the status
of any process before the competent provincial authority. The persons or functionaries
whose statutory powers would be directly implicated are not the subject of substantive
relief designed to obtain a determination from them.
[26] On the respondents' version, read with the admitted facts, the Court cannot find
that every representation by the second respondent that he is Kgosana is necessarily
false or unlawful. Conversely, the Court does not decide that he has been lawfully
recognised for all statutory purposes. That question is not properly constituted for final
determination on the present papers.
[27] A narrower interdict limited to a false claim of official statutory recognition would
still require clear proof of the representation made, its falsity, its threatened repetition
and the applicants' standing and right to prevent it. The papers, as described above ,
and the applicants' standing and right to prevent it. The papers, as described above ,
do not establish those matters sufficiently. The first prayer must therefore fail.
Alleged interference with the Traditional Council and Trust
[28] The applicants proffer serious allegations of interference against the first and
second respondents. They include engagement with mining stakeholders ,
involvement in protests, attempts to influence recruitment and intrusion into the
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governance of the Traditional Council and the Trust. Serious allegations, however, do
not prove themselves. lnterdictory relief must be founded on admissible facts
identifying the conduct, the person responsible, its unlawfulness and the right
infringed.
[29] In this case material disputes arise concerning what occurred, who authorised
the relevant engagements, the capacity in which the respondents acted, and whether
the conduct amounted to unlawful interference rather than participation in community
affairs. The respondents' denials cannot, on the evidence before Court, be
characterised as fictitious, palpably implausible or clearly untenable. Applying
Plascon-Evans, it is my view that the applicants have not established facts entitling
them to final relief they seek in these proceedings.
[30] Further, the relief sought by the applicants is also broad. An order prohibiting
"interference" without identifying the prohibited acts risks uncertainty and may restrain
lawful conduct, including the performance of recognised functions or legitimate
participation in community affairs. The Constitutional Court's decision in Pilane 10
demonstrates the need for precision where interdicts affect traditional-community
governance, identity and participation.
[31] The Trust is a distinct legal institution. Its administration is governed by the trust
deed, applicable trust law and decisions lawfully taken by its trustees. The
collaboration agreement regulates aspects of the relationship between the Trust and
the Traditional Council, but it neither confers authority to decide traditional succession
nor displaces legislation or customary law.
(32] The applicants have not connected the alleged conduct to identified provisions
of the trust deed or collaboration agreement with sufficient particularity. Nor have they
shown, on facts sustainable in motion proceedings, that the first or second respondent
exercised or purported to exercise powers reserved to the trustees, dealt with trust
exercised or purported to exercise powers reserved to the trustees, dealt with trust
property without authority, or prevented the trustees from performing their legal duties.
10 See fn 9 supra, at paras 40-50.
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[33] The COGHSTA report does not cure these defects. Its adverse findings
concerning administration of the Traditional Council may be relevant background, but
the report does not determine the validity of the second respondent's appointment and
does not establish the specific acts required for the interdict sought.
[34] The applicants have accordingly failed to establish a clear right and an actual
or reasonably apprehended infringement supporting the broad final interdict. For
substantially the same reasons, they have not established a prima facie right and a
well-grounded apprehension of irreparable harm sufficient for interim relief.
Alternative remedies
[35] The requirement of no adequate alternative remedy must be applied to the
particular wrong. A criminal complaint is not a substitute for a judicial determination of
leadership status, and a complaint to the Master does not resolve a traditional
leadership dispute. Those avenues are nevertheless relevant to the distinct allegations
of criminality and unlawful trust administration.
[36) More importantly, the statutory and customary framework provides processes
through which disputes about appointment, confirmation, recognition and conduct in
traditional office may be raised before the competent traditional and provincial
authorities. The applicants have not shown that those processes were exhausted,
unavailable, ineffective, or incapable of producing an authoritative determination. Nor
have they sought relief compelling the responsible functionary to act.
[37] Insofar as the complaint concerns the Trust, the trustees may invoke remedies
under the trust deed and trust law, approach the Master where appropriate, and seek
precisely framed relief against proved interference. The present broad order is not
justified merely because other remedies may require properly directed proceedings .
Appointment of an interim Kgosana
[38] The prayer that this Court appoint the ninth respondent as interim Kgosana is
[38] The prayer that this Court appoint the ninth respondent as interim Kgosana is
in my view, legally unsustainable on -the case presented before me for the reasons
fully set out below.
[39] The authority to identify, appoint, confirm or recognise a traditional leader is
distributed by customary law and legislation among designated traditional structures
and executive functionaries. A court's role is to determine legality where properly
approached; it is not ordinarily to select and install its preferred candidate. A judicial
appointment on these papers would bypass the very processes whose non
compliance the applicants invoke against the first and second respondents.
[40] Even if the applicants had established that the second respondent's
appointment was defective, it would not follow that the ninth respondent must be
appointed. The ninth respondent's entitlement would require its own lawful customary
and statutory foundation. No sufficient foundation has been established by the
applicants for me to make the proposed substitution.
[41] Moreover, the prayer is also inconsistent with the applicants' contention that
proper investigation, consultation and recognition processes must first occur. A litigant
cannot insist on compliance with institutional processes while asking the Court to pre
empt their outcome by appointing its chosen interim candidate.
Referral to oral evidence
(42) I have also considered whether any dispute should be referred to oral evidence
under Rule 6(5)(g) of Uniform Rules of Court. In my view, referral would not be
appropriate for the following reasons.
(43] The difficulty is not confined to a narrow factual conflict capable of resolution
through cross-examination. The application also suffers from the absence of properly
directed review or mandatory relief, insufficient identification of the relevant statutory
acts and functionaries, lack of precision in the interdicts, and inadequate proof of the
Trust rights allegedly infringed. Oral evidence cannot cure those defects without
materially reconstructing the applicants' case.
(44) The applicants elected to seek broad final and interim relief on motion in
(44) The applicants elected to seek broad final and interim relief on motion in
circumstances where substantial disputes concerning conduct and authority were
reasonably foreseeable. Fairness and the interests of justice do not favour affording
an opportunity to remake the case through an open-ended referral.
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COSTS
[45] It is trite, that costs remain a matter of judicial discretion, to be exercised on
principle and in light of all relevant circumstances. There was no reason to depart from
that rule.
[46] This application engages traditional leadership, customary law and the lawful
exercise of public functions. Those features caution against treating an unsuccessful
application as abusive merely because it fails. The Biowatch principle 11 recognises
that genuine constitutional litigation should not lightly attract a cost order that chills
access to court, while preserving the power to sanction frivolous, vexatious or
manifestly inappropriate proceedings.
[47] Moreover, this application was initially enrolled as urgent and struck from the
roll for lack of urgency. That history is relevant but does not, without more, establish
bad faith or abuse. The applicants nevertheless persisted in seeking wide final relief
on materially disputed facts, sought the judicial installation of their preferred interim
Kgosana without a sufficient legal basis, and did not formulate relief against the
functionaries entrusted with the relevant statutory responsibilities. The first and second
respondents were required to oppose the proceedings to protect their asserted
positions.
[48] In those circumstances, in my view the ordinary rule that costs follow the result
should apply. The complexity of the intersecting issues of customary law, traditional
leadership, trust governance and motion procedure reasonably justified the
employment of two counsel where two counsel were in fact employed.
[49] A personal costs order is exceptional and ordinarily requires conduct such as
bad faith, gross negligence, dishonesty or a serious abuse of the court's process.12
The present record, as assessed for purposes of this judgment, does not justify a
finding of that character against identified applicants individually. The costs order will
finding of that character against identified applicants individually. The costs order will
11 Biowatch Trust v Registrar, Genetic Resources, and Others (2009) ZACC 14; 2009 (6) SA 232 (CC);
2009 (10) BCLR 1014 (CC) at paras 18 and 21.
12 See Public Protector v South African Reserve Bank (2019] ZACC 29; 2019 (9) BCLR 1113 (CC);
2019 (6) SA 253 (CC) at paras 25, 84 and 117.
12
therefore be an ordinary party-and-party order, not a de bonis propriis or other
personal punitive order.
[50) Counsels' costs on scale B is appropriate having regard to the nature,
importance and complexity of the matter.
[51] In conclusion, it is my considered view that on the conspectus of the evidence
before me, evaluated on a balance of probabilities, the applicants have not established
the requirements for final or interim interdictory relief. The material disputes
concerning the alleged interference cannot be resolved in their favour on the papers.
The official status of the second respondent has not been placed before Court through
properly framed proceedings against the competent decision-makers. The
collaboration agreement cannot determine traditional succession, and the evidence
does not justify a broad interdict concerning the Trust. Finally, this Court has no proper
basis to appoint the ninth respondent as interim Kgosana.
[52) Nothing my judgment determines conclusively who is entitled, under applicable
customary law and legislation, to occupy the position of Kgosana. Nor does it validate
any official representation unsupported by lawful recognition. This judgment
determines only that the applicants have not established entitlement to the relief
sought in these proceedings.
ORDER
[53] In the circumstances, I make the following order:
[1] The application is dismissed.
[2] The applicants, excluding the first and ninth applicants, are ordered,
jointly and severally, the one paying the others to be absolved, to pay
the first and second respondents' costs on the party-and-party basis,
including the costs of two counsel where two counsel were employed on
scale B.
MMORGAN
Acting Judge of the High Court of South Africa,
North West Division, M~hikeng
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PARTIES REPRESENATIVES
Counsel for the Applicants:
Instructed by:
Adv CZ Muza
Shuping Attorneys Inc
Email: cUntmuza@gmaiLcom I info@shupinqattornevs,co.za
Counsel for the First and Second Respondents: Adv F Khunou
Instructed by: Van Velden Duffey Inc
Email: johannesm @vvd.co.za
*The parties whose names or counsel are not recorded herein did not appear or
participate in the hearing.
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