Leboho and Others v Premier of Limpopo Province and Others (37898/07) [2011] ZAGPPHC 22 (28 January 2011)

Leboho and Others v Premier of Limpopo Province and Others (37898/07) [2011] ZAGPPHC 22 (28 January 2011)

The court found that the Premier of Limpopo Province acted ultra vires in recognising Tlabo Joseph Leboho as 'Kgoshi' of the Bahananwa Traditional Community, as the identification process did not comply with the requirements of applicable legislation and customary law. The Royal Council was not properly constituted, and individuals who were not legitimate members participated in the decision. The evidence demonstrated that Tlabo Joseph Leboho did not qualify under Bahananwa custom, as his mother was neither a timamollo, tlhatswadirope, nor seantlo, and he was not a leader of a regiment. The Premier failed to refer the dispute to the Provincial House of Traditional Leaders or back to the...

Citation
[2011] ZAGPPHC 22
Parties
Applicant: Ngako Isaac Leboho; Applicant: Ntikane Phillip Leboho; Applicant: Ngako Richard Leboho; Applicant: Matome Wilson Leboho; Applicant: Ntsiheiseng Peter Leboho; Respondent: Premier of Limpopo Province; Respondent: Tlabo Joseph Leboho; Respondent: Tlatludi Leboho; Respondent: Gilbert Maleboho; Respondent: Frans Leboho
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 January 2011
Case Number
37898/07
Procedural Posture
Review Application / Trial After Referral From Review Application
Outcome
Application granted in part; Premier's recognition of Tlabo Joseph Leboho as 'Kgoshi' declared null and void, reviewed and set aside. Costs awarded against First and Second Respondents jointly and severally.
Judges
Raulinga
Legal Topics
Traditional Leadership Recognition, Ultra Vires Decision, Customary Law Succession, Judicial Review, Separation of Powers
Administrative Law Civil Procedure Family and Children Traditional Leadership Recognition Ultra Vires Decision Customary Law Succession Judicial Review Separation of Powers

Case Brief

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Parties

Ngako Isaac Leboho

Applicant

Ntikane Phillip Leboho

Applicant

Ngako Richard Leboho

Applicant

Matome Wilson Leboho

Applicant

Ntsiheiseng Peter Leboho

Applicant

Premier of Limpopo Province

Respondent

Tlabo Joseph Leboho

Respondent

Tlatludi Leboho

Respondent

Gilbert Maleboho

Respondent

Frans Leboho

Respondent

Procedural Posture

Review Application / Trial After Referral From Review Application

Legal Issues

  1. 1 Whether the Premier of Limpopo Province lawfully recognised Tlabo Joseph Leboho as 'Kgoshi' of the Bahananwa Traditional Community.
  2. 2 Whether the identification of Tlabo Joseph Leboho as 'Kgoshi' was conducted in accordance with Bahananwa customary law, customs, and processes.
  3. 3 Which individual, between Tlabo Joseph Leboho and Ngako Isaac Leboho, qualifies under customary law to assume the position of 'Kgoshi'.

Ratio Decidendi

The court found that the Premier of Limpopo Province acted ultra vires in recognising Tlabo Joseph Leboho as 'Kgoshi' of the Bahananwa Traditional Community, as the identification process did not comply with the requirements of applicable legislation and customary law. The Royal Council was not properly constituted, and individuals who were not legitimate members participated in the decision. The evidence demonstrated that Tlabo Joseph Leboho did not qualify under Bahananwa custom, as his mother was neither a timamollo, tlhatswadirope, nor seantlo, and he was not a leader of a regiment. The Premier failed to refer the dispute to the Provincial House of Traditional Leaders or back to the...

Court Disposition

Application granted in part; Premier's recognition of Tlabo Joseph Leboho as 'Kgoshi' declared null and void, reviewed and set aside. Costs awarded against First and Second Respondents jointly and severally.

Orders

  • The First Respondent's official recognition of the Second Respondent, Tlabo Joseph Leboho, as senior traditional leader or 'Kgoshi' of the Bahananwa Traditional Community with effect from 6 September 2006 per decision No 123/2006 is declared null and void, reviewed and set aside.
  • The First and Second Respondents are jointly and severally ordered to pay the costs of this application on a scale as between attorney and own client, the one paying the other to be absolved.