Batleng v Honourable Premier of the North-West Province and Others (988/2006) [2007] ZANWHC 10 (19 March 2007)
The court found that there was a material dispute of fact regarding whether a person without royal blood could be appointed as regent under customary law. This dispute could not be resolved on the papers, and expert evidence on customary law and traditional leadership was necessary. Accordingly, the matter was...
Source-derived case information.
- Citation
- [2007] ZANWHC 10
- Parties
- Applicant: Lotlamoreng Batleng; Respondent: Honourable Premier of the North West Province; Respondent: Executive Committee of the Royal House of the Batlhako Ba-Leema Tribe; Respondent: Nkibi Batleng
- Court
- North West High Court, Mafikeng
- Jurisdiction
- South Africa
- Case Number
- 988/2006
- Procedural Posture
- Review Application / Referral to Trial After Application
- Outcome
- Application referred to trial due to material dispute of fact; costs to be costs in the cause.
- Judges
- M.T.R. Mogoeng
- Legal Topics
- Traditional Leadership Dispute, Customary Law, Review of Administrative Action
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lotlamoreng Batleng
Applicant
Honourable Premier of the North West Province
Respondent
Executive Committee of the Royal House of the Batlhako Ba-Leema Tribe
Respondent
Nkibi Batleng
Respondent
Procedural Posture
Review Application / Referral to Trial After Application
Legal Issues
- 1 Whether a person without royal blood may act as senior traditional leader when the heir is unable to perform duties.
- 2 Whether the Premier's recognition of the third respondent as regent was lawful under customary law.
Ratio Decidendi
The court found that there was a material dispute of fact regarding whether a person without royal blood could be appointed as regent under customary law. This dispute could not be resolved on the papers, and expert evidence on customary law and traditional leadership was necessary. Accordingly, the matter was referred to trial for proper ventilation of the issues, with affidavits to stand as pleadings.
Court Disposition
Application referred to trial due to material dispute of fact; costs to be costs in the cause.
Orders
- The parties are referred to trial.
- The notice of motion and affidavits are to stand as combined summons, pleas, and replication, respectively.
Full Case Text
Judgment text and source record
31 paragraphs
CASE NO. 988/2006
IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
In the matter between:
LOTLAMORENG BATLENG APPLICANT
and
THE HONURABLE PREMIER OF THE NORTH WEST
PROVINCE 1ST RESPONDENT
THE EXECUTIVE COMMITTEE OF THE ROYAL
HOUSE OF THE BATLHAKO BA-LEEMA TRIBE 2ND RESPONDENT
NKIBI BATLENG 3RD RESPONDENT
_______________________________________________________________________________
JUDGMENT
MOGOENG JP.
[1] This is an application to set aside the recognition, by the Premier, of the third Respondent as regent of the Batlhako Ba Leema tribe. It is not said what should then become of the running of the affairs of the tribe thereafter.
[2] A material dispute of fact has arisen regarding whether a person who does not have the royal blood of a particular tribe running through his/her veins could, under any circumstances, be allowed to act as a senior traditional leader when the heir to the throne is, for one reason or the other, unable to carry out his/her duties as senior traditional leader of the tribe. This is a matter which cannot be resolved on the papers before me. People with experience on matters of traditional leadership need to testify about the process of identifying a traditional leader and the relevant customary laws and practices. For this reason, this matter has to be referred to trial for the proper ventilation of the issues.
[3] In the result:
the parties are referred to trial;
the notice of motion and the founding affidavit, answering affidavits and replying affidavits are to stand as a combined summons, pleas and replication, respectively; and
the costs incurred in this application are to be costs in the cause and in the event of the Applicant not proceeding to action, the Respondentsâ costs to be paid by the Applicant.
__________________
M.T.R. MOGOENG
JUDGE PRESIDENT OF THE HIGH COURT
APPEARANCES
DATE OF HEARING : 15 MARCH 2007
DATE OF JUDGMENT : 19 MARCH 2007
COUNSEL FOR APPLICANT : ADV B. GUDELSKY SC
COUNSEL FOR RESPONDENTS : DR S.J. SENATLE
ATTORNEYS FOR APPLICANT : SM MOOKELETSI ATTORNEYS
(Instructed By SETSHEDI, MAKGALE & PARTNERS)
ATTORNEYS FOR APPLICANTS : THE STATE ATTORNEY