Balobedu Ba Modjadji Traditional Council and Others v Phillia and Others (6043/2020) [2023] ZALMPPHC 52 (10 July 2023)
The court found the explanation for the delay in filing the application for leave to appeal acceptable and granted condonation. However, after considering the grounds for appeal and the applicants' submissions, the court was not persuaded that another court would overturn the orders made. The appeal was found to...
Source-derived case information.
- Citation
- [2023] ZALMPPHC 52
- Parties
- Applicant: Balobedu Ba Modjadji Traditional Council; Applicant: Regent Mpapatla Thabisanang Modjadji; Applicant: Leon Mateta; Applicant: Letty Hlangwana; Respondent: Hosi Tinyiko Lwandlamuni Phillia; Respondent: Nwmitwa-Shilubana Baloyi Tribal Authority; Respondent: Minister of Rural Development and Land Reform; Respondent: Chief Director: Limpopo Shared Services Centre, Provincial Department of Rural Development and Land Reform, Limpopo; Respondent: Chief Director: Limpopo Shared Services Centre, Provincial Department of Co-operative Governance, Human Settlement and Traditional Affairs
- Court
- Limpopo High Court, Polokwane
- Jurisdiction
- South Africa
- Case Number
- 6043/2020
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment and Orders Delivered on 21 January 2022.
- Outcome
- Application for leave to appeal dismissed with no order as to costs.
- Judges
- Mangena
- Legal Topics
- Boundary Dispute, Condonation, Leave to Appeal, Gazette Evidence
Source-derived case record
Summary, issues, holding and outcome
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Parties
Balobedu Ba Modjadji Traditional Council
Applicant
Regent Mpapatla Thabisanang Modjadji
Applicant
Leon Mateta
Applicant
Letty Hlangwana
Applicant
Hosi Tinyiko Lwandlamuni Phillia
Respondent
Nwmitwa-Shilubana Baloyi Tribal Authority
Respondent
Minister of Rural Development and Land Reform
Respondent
Chief Director: Limpopo Shared Services Centre, Provincial Department of Rural Development and Land Reform, Limpopo
Respondent
Chief Director: Limpopo Shared Services Centre, Provincial Department of Co-operative Governance, Human Settlement and Traditional Affairs
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment and Orders Delivered on 21 January 2022.
Legal Issues
- 1 Whether condonation for late filing of the application for leave to appeal should be granted.
- 2 Whether the applicants have reasonable prospects of success on appeal regarding the boundary dispute and the court's orders.
- 3 Whether the court erred in disregarding a government gazette notice relevant to the dispute.
Ratio Decidendi
The court found the explanation for the delay in filing the application for leave to appeal acceptable and granted condonation. However, after considering the grounds for appeal and the applicants' submissions, the court was not persuaded that another court would overturn the orders made. The appeal was found to lack reasonable prospects of success, particularly as the applicants failed to demonstrate that the court's disregard of the government gazette notice or the absence of the Premier's report materially affected the outcome. The application for leave to appeal was therefore dismissed.
Court Disposition
Application for leave to appeal dismissed with no order as to costs.
Orders
- Condonation for late filing of the application for leave to appeal is granted.
- Application for leave to appeal is dismissed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE №: 6043/2020
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
20.07.23
In the matter between:
BALOBEDU BA MODJADJI TRADITIONAL COUNCIL FIRST APPLICANT REGENT MPAPATLA THABISANANG MODJADJI SECOND APPLICANT LEON MATETA THIRD APPLICANT LETTY HLANGWANA FOURTH APPLICANT V HOSI TINYIKO LWANDLAMUNI PHILLIA FIRST RESPONDENT NWMITWA-SHILUBANA BALOYI TRIBAL AUTHORITY SECOND RESPONDENT MINISTER OF RURAL DEVELOPMENT AND LAND REFORM THIRD RESPONDENT CHIEF DIRECTOR: LIMPOPO SHAREDSERVICES CENTRE, PROVINCIAL DEPARTMENT OF RURAL DEVELOPMENT AND LAND REFORM, LIMPOPO FOURTH RESPONDENT CHIEF DIRECTOR: LIMPOPO SHARED SERVICES CENTRE, PROVINCIAL DEPARTMENT OF CO-OPERATIVE GOVERNANCE, HUMAN SETTLEMENT AND TRADITIONAL AFFAIRS FIFTH RESPONDENT In Re HOSI TINYIKO LWANDLAMUNI PHILLIA FIRST APPLICANT NWMITWA-SHILUBANA BALOYI TRIBAL AUTHORITY SECOND APPLICANT V BALOBEDU BA MODJADJI TRADITIONAL COUNCIL FIRST RESPONDENT REGENT MPAPATLA THABISANANG MODJADJI SECOND RESPONDENT LEON MATETA THIRD RESPONDENT LETTY HLANGWANA FOURTH RESPONDENT MINISTER OF RURAL DEVELOPMENT AND LAND REFORM FIFTH RESPONDENT CHIEF DIRECTOR: LIMPOPO SHARED SERVICES CENTRE, PROVINCIAL DEPARTMENT OF RURAL DEVELOPMENT AND LAND REFORM, LIMPOPO SIXTH RESPONDENT CHIEF DIRECTOR: LIMPOPO SHARED SERVICES CENTRE, PROVINCIAL DEPARTMENT OF CO-OPERATIVE GOVERNANCE, HUMAN SETTLEMENT AND TRADITIONAL AFFAIRS SEVENTH RESPONDENT
LEAVE TO APPEAL JUDGMENT
MANGENA AJ
[1] Applicants seek leave to appeal the whole judgment and orders of this court delivered on 21 January 2022. The application is unopposed.
[2] The application for leave to appeal was filed with the Registrar's office on 02 December 2022 accompanied by a condonation application.
[3] The Applicants explained the delay and attributed it to the fact that the judgment was never received by their attorneys until the 16 November 2022 when enquiries were made with the office of the Judge President.
[4] The condonation application is not opposed and the explanation proferred is acceptable. The issue need not detain us any longer than it is necessary. Condonation for the late filing of the application for leave to appeal is granted.
[5] The grounds for leave to appeal are set out in the notice of appeal and were amplified by the written and oral submissions.
[6] The applicants submitted that the dispute between the parties related to the boundary and therefore required to be resolved through a procedure prescribed in the Limpopo Traditional Leadership and Institutions Act 6 of 2005. This process required a Premier to make a determination and without his report, the court was not in a position to adjudicate on the matter.
[7] It was further argued on behalf of the Applicants that the court erred by disregarding a government gazette notice attached to the heads of argument. For this contention, counsel relied on Section 5 of the Civil Proceedings Evidence Act 25 of 1965 which provides that judicial notice shall be taken of any law or government notice or any matter that has been published in a gazette. It was submitted that had the court considered the gazette, it would not have arrived at the decision it took in particular, the order directing the respondents to return possession of the property to the Applicants.
[8] I have given due regard to the submissions and considered them in tandem with the orders made and regrettably, I am not persuaded that the orders made are susceptible to be overturned by another court. In my opinion the appeal would not have a reasonable prospect of success.
[9] It is ordered as follows:
1. Condonation is granted.
2. Application for leave to appeal is dismissed with no order as to costs.
Acting Judge of the High Court
Limpopo Division, Polokwane
APPEARANCES:
HEARD ON : 29 June 2023
JUDGMENT DELIVERED ON : 20 July 2023. This judgment was handed down electronically by circulation to the parties’ representatives by email. The date and time for hand-down of the judgment is deemed to be 20 July 2023 at 12:00
FOR THE APPLICANT Mr. N Kubayi INSTRUCTED BY Noveni Eddy Kubayi Inc FOR THE RESPONDENT No Appearance INSTRUCTED BY Thomas & Swanepoel Inc FOR THE RESPONDENT No Appearance INSTRUCTED BY State Attorney