Tauetsile v Premier of the North West Province and Others (M 123/2017) [2023] ZANWHC 7 (7 February 2023)

IN THE HIGH COURT HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAFIKENG

CASE NO: M 123/2017

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates:NO

In the matter between:

BOIKANYO WILBERT TAUETSILE

Applicant

and

PREMIER OF THE NORTH WEST

PROVINCE

First Respondent

MEC FOR THE DEPARTMENT OF

CULTURE, ARTS AND TRADITIONAL

AFFAIRS

Second Respondent

KGOSI NYOKO MOTLHABANE

Third Respondent

KEIPIDITSE MOTLHABANE

Fourth Respondent

KEATWENG MOTLHABANE

Fifth Respondent

ORDER

(i)The application is dismissed.

(ii)No order as to costs.

Judgment

PETERSEN J

Introduction

[1] This matter came before me pursuant to an order by Djaje J (as she then was) on 18 October 2018 referring the matter for oral evidence, as a result, of factual disputes that could not be resolved on the papers. The referral of the matter for oral evidence in terms of Rule 6(5)(g) of the Uniform Rules of Court was formulated as follows:

1 The matter is referred for oral evidence on the issue whether the family of the applicant indeed inherited the bogosana of Mothanthanyane and Graspan Metsana Villages.

2. Costs are reserved. '

[2] The applicant (Mr Tauetsile) formulated the declaratory relief sought in the following terms:

"1. A declaration:

1.1 Declaring the conduct of the Respondents, to the extent that they have removed the Applicant as an acting Kgosana of Mothanthanyane and Graspan Metsana to be inconsistent with section 20(1), (2) and (3) of the North West Traditional Leadership and Framework Act 2 of 2005;

1.2 A declaration that the Applicant or his successor in title is the rightful incumbent heir to the bogosana of Mothanthanyane and Graspan Metsana in accordance with the Baga-Maidi Traditional Council established customary law and customs consistent with section 19(1) and (2), (3) and (4) read with section 24(b) of the North West Traditional Leadership and Framework Act 2 of 2005;

1.3 An order directing the First and Second Respondent to reinstate the salary related benefits applicable to the Applicant or his successor in title as an acting Kgosana of Mothanthanyane and Graspan Metsana with effect from March 2016 to date.

1.4 Interest at the rate of 15.5% per annum;

1.5 The Applicant is awarded costs, including cost of counsel; and

1.6 Ordering such further and/or alternative relief as this Honourable Court may deem fit. '

The legislative framework

[3] An exposition of the applicable legislative framework is apposite. The North West Traditional Leadership and Governance Act 2 of 2005 (the North West Traditional Leadership and Governance Act) as with similar legislation applicable in other Provinces in the Republic of South Africa is a culmination of principles enunciated in the Constitution of the Republic of South Africa, 2006 and National Legislation. It replaces the old Bophuthatswana Traditional Authorities Act 23 of 1987, although many of its provisions emanate from the old Act.

[4] In terms of the Constitution the institution, status and role of traditional leadership, is subject to the Constitution delineates a court when applying customary law must do so subject to the Constitution and any other applicable legislation. Section 211 of the Constitution provides in this regard that:

'Recognition

211 (1) The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution.

(2) A traditional authority 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: subiect to the Constitution and any legislation that specifically deals with customary law.

(my emphasis)

[5] The framework for traditional leadership is governed by national legislation in the Traditional Leadership and Governance Framework Act 41 of 2003 (the Traditional Leadership and Governance Framework Act). The Traditional Leadership and Governance Framework Act, in echoing the tenets of the Constitution sets a framework in terms of which provincial legislation relevant to each Province, must be structured. In this regard, the Preamble of the Traditional Leadership and Governance Framework Act provides that:

"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;

AND WHEREAS the South African indigenous people consist of a diversity of cultural communities;

AND WHEREAS the Constitution recognizes

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

the State must respect, protect and promote the institution of traditional leadership in accordance with the dictates of democracy

in South Africa;

the State recognises the need to provide appropriate support and capacity building to the institution of traditional leadership;

the institution of traditional leadership must be transformed to be in harmony with the Constitution and the Bill of Rights so that

democratic governance and the values of an open and democratic society may be promoted; and

- gender equality within the institution of traditional leadership may progressively be advanced; and

the institution of traditional leadership must

promote freedom, human dignity and the achievement of equality and non-sexism;

derive its mandate and primary authority from applicable customary law and practices;

-strive to enhance tradition and culture;

promote nation building and harmony and peace amongst people;

- promote the principles of co-operative governance in its interaction with all spheres of government and organs of state; and

- promote an efficient, effective and fair dispute-resolution system, and a fair system of administration of justice, as envisaged in applicable legislation,

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:-..."

[6] The North West Traditional Leadership and Governance Act is a culmination of the tenets of section 211 of the Constitution and the framework relevant to the North West Province as guided and informed by the Traditional Leadership and Governance Framework Act. The Preamble of the the North West Traditional Leadership and Governance Act provides that:

"WHEREAS National Government has in accordance with the Constitution and National legislation set out:-

-To set a national framework, norms and standards that will define the role of traditional leadership within the 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 laws and practices;

AND 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;

-the State recognises the need to provide appropriate support and capacity building to the institution of traditional leadership;

-the institution of traditional leadership must be transformed to be in harmony with the Constitution and the Bill of Rights so that —

-gender equality within the institution of traditional leadership may progressively be advanced; and

-the institution of traditional leadership must —

-derive its mandate and primary authority from applicable customary law and practices;

-promote nation building, harmony and peace amongst people;

promote the principles of co-operative governance in its interaction with all spheres of government and organs of state; and

-promote an efficient, effective and fair dispute resolution system and a fair system of administration of justice, as envisaged in applicable legislation;

AND WHEREAS the North West Provincial Government is committed to transformation of the institution of traditional leadership;

AND WHEREAS the North West Provincial Government seeks to promote collaboration between the institution and the three spheres of government in line with the dictates of co-operative governance;

AND WHEREAS the North West Provincial Government seeks to provide an enabling environment for the recognition, protection, preservation,

transformation and development of traditional communities, institutions, customary law and customs in the North West Province;.

[7] The following definitions in the North West Traditional Leadership and Governance Act are relevant to the present matter:

(1) In this Act, unless the context indicates otherwise-

"bogosana" means the position held by a kgosana;

"bogosi" means the position held by a kgosi;

"kgosana" means a hereditany traditional leader who

(a)

is under the authority of, or exercise authority within the area ofjurisdiction of, a senior traditional leader in accordance with customary law; and

(b) is recognised as such in terms of this Act.

"kgosi/kgosigadi" means the person who in accordance with the laws and customs of a particular traditional community is recognised as the hereditary head of such traditional community and who is a citizen of the Republic of South Africa;

"motsana" means an outlying village under the authority of a kgosana, within the area ofjurisdiction of, a senior traditional leader in accordance with customary authority structure;

"Royal family" means the core customary institution or structure consisting of immediate relatives of the ruling family within a traditional community, who have been identified in terms of custom, and includes, where applicable, other family members who are close relatives of the ruling family;

"tradition" includes the traditions, laws and customs practiced by members of a traditional community. '

[8] In the interpretation and application of the provisions of the the North West Traditional Leadership and Governance Act, section 2 provides that:

"2 Application and Interpretation

(1) This Act shall apply only within the boundaries of the North West Province and governs traditional leadership within the Province.

(2) This Act is subject to the Constitution and the Framework Act.

(3) Nothing contained in this Act ma be construed as precluding members of a traditional community from addressing a traditional leader by the traditional title accorded to him or her by custom, but such traditional title does not derogate from or add anything to the status role and functions of a traditional leader as rovided forin this Act.

(4) Traditional leaders may acknowledge or recognise the different levels of seniority among themselves in accordance with custom, and none of the definitions contained in section 1 must be construed as conferring or detracting from such seniority

(5) Customs: traditions or customary laws relating to traditional leadership will continue to operate, subiect to the Constitution, the Framework Act and this Act.

[9] Sections 19 and 21 of the the North West Traditional Leadership and Governance Act, provides for the identification of kgosana and recognition of acting kgosana, as follows:

"19 Identification of kgosana

(1) Boaosana of a traditional community shall be in accordance with the customary law and customs applicable in such a traditional community

(2) The identification of a kgosana of a traditional community shall bemade by the Royal family in accordance with its customary law and customs.

(3) The Premier may recognise a person identified as contemplated in subsection (1) as kgosana of a particular traditional community.

(4) The Premier shall issue a person so recognised as kgosana with a certificate of recognition.

(5) The Premier shall issue a notice in the Gazette recognise a kgosana and such notice shall be served on the Local House of Traditional Leaders for information.

"21 Recognition of an acting kgosana

(1) Bogosana of a traditional community_ shall be in accordance with the customary law and customs applicable in such a traditional community

(2) The identification of an acting kgosana to bogosana of a traditional community shall be made by the Royal family in accordance with its customary law and customs.

(3) The Premier may confirm a person identified as contemplated in subsection (1) as an acting kgosana of a particular traditional community.

(4) The Premier shall issue a person so recognised as an acting kgosana with certificate of recognition.

(6) The Premier shall issue a notice in the Gazette recognising an acting kgosana and such notice shall be served on the Local House of Traditional Leaders for information.

[10] In terms of sections 19 and 21 of the North West Traditional Leadership and Governance Act, the identification of kgosana and the recognition of acting kgosana shall be "in accordance with the customary law and customs applicable in such a traditional community " in respect of a person who so qualifies in terms of customary law and customs. Section 21 determines the circumstances under which a kgosana may be removed from office. No similar provision exists for the removal of an acting kgosana.

[11] The removal of a kgosana, in particular, is determined by section 20 of the North West Traditional Leadership and Governance Act as follows:

"20 Removal of kgosana

(1) A kgosana may be removed from office on the grounds of—

(a) conviction of an offence with a sentence of imprisonment for more than 12 months without an option of a fine;

(b) mental infirmity which, based on acceptable medical evidence, makes it impossible for that kgosana to function as such;

(c) wrongful identification and recognition; or

(d) a transgression of a customary rule, principle or code of conduct that warrants the removal.

(2) Whenever any of the grounds referred to in subsection (1) come to the attention of a kgosi/kgosigadi and the Royal family, such kgosi/kgosigadi and the Royal family decides to withdraw the appointment of a kgosana, a kgosi/kgosigadi concerned must within a reasonable time inform the Premier of such decision and the reasons thereof.

(3) The Premier shall upon receipt of such decision and reasons therefor, withdraw the certificate of recognition of such a kgosana by

(a) publishing a notice of withdrawal of recognition of such kgosana in the Gazette;

(b) informing the kgosi/kgosigadi and the Royal family concerned, the kgosana concerned and the relevant Local House of Traditional Leaders of such removal.

(4) The kgosi/kgosigadi and the Royal family shall after taking a decision to remove a kgosana, appoint a successor in accordance with the applicable customary law and customs and the provisions of this Act."

[12] Mr Tauetsile asserts the hereditary right of his family premised on the clans of the Baga-Maidi and specifically identifies the 1950's when this hereditary right was recognised and the ascension of his family to the bogosana of Mothanthanyaneng. Before the North West Traditional Leadership and Governance Act came into operation, all tribal matters were dealt with in the ambit of the Bophuthatswana Traditional Authorities Act 23 of 1978 and the Black Authorities Act 68 of 1951 which commenced on 17 July 1951. The administration of the Acts, was assigned to the North West Provincial Government, by Proclamation 110 of 1994, in Government Gazette 15813 of 1994.

[13] The Black Authorities Act made no specific provision for the identification or recognition of a headman, save to provide for the establishment of tribal authorities that included, inter alia, kgosi and kgosana. The practice in appointment of kgosana during the 1950's is to be determined according to the customs and practices of the BagaMaidi at the time. The burden of proof in this

regard rests on the applicant.

[14] Section 36 of the Bophuthatswana Traditional Authorities Act 23 of 1978 provided for the appointment of kgosi in the region of the former Bophuthatswana and further provided that a kgosi may appoint a kgosana. The central role of the kgosi in the appointment of a kgosana in terms of this legislation demonstrates a marked change from the 1951 legislation.

[15] It is within the framework of the Constitution, the Framework Act and the North West Traditional Leadership and Governance Act that the applicable customary law and customs of the Baga-Maidi community is to be considered to answer the narrow issue on which the matter was referred for oral evidence.

The admissibility of hearsav evidence in respect of the traditions and customs of the Baqa-Maidi

[16] The applicant called six witnesses in support of his application with the respondents countering the application with four witnesses. It is from this evidence, or more importantly the relevant portions thereof which speaks to the issue which has been referred for oral evidence, that the customary law, if any, and customs of the Baga-Maidi must be established.

[17] During the course of the presentation of oral evidence, an issue was raised regarding hearsay evidence being tendered by certain witnesses for the applicant and which may similarly apply to witnesses for the respondents. I allowed the evidence and indicated reasons would follow. Those reasons now follow.

[18] The challenge faced by Courts when called upon to adjudicate disputes predicated on custom and traditions was succinctly captured in Sigcau v Sigcau[1] , where Watermeyer CJ said the following in the context of Pondo law and custom:

"Pondo law and custom is a body of unwritten law save for certain decisions of the Native Appeal Court and statements as to Native Law and Custom made by native assessors which are recorded in the reports of the Native Appeal Court, and save for certain passages in books dealing with native custom. But even such records as there are little more than records of traditions, records of what someone at some time said the custom was. In the reported cases the recorded opinions of assessors naturally harden into law and certain books are to some extent accepted as accurately stating what native custom is. But apart from making what use is possible of these scanty records, the only wav in which the Court can determine a disputed point, which has to be decided according to native custom, is to hear evidence as to that custom from those best qualified to give it and to decide the dispute in accordance with such evidence as appears in the circumstances to be most probably correct. "

[19] What Sicgau ultimately proposes is the receipt of evidence by persons who are best qualified to give such evidence. That proposes the receipt of evidence from community members of the tribal community to consider the probabilities of the evidence so tendered. This approach is elaborated upon in our Constitutional dispensation in Shilubana and Others v Nwamitwa[2] where Van Der Westhuizen J writing for the Court said:

"Determining customary law

[42] The status of customary law in South Africa is constitutionally entrenched. Section 211 of the Constitution provides that the institution, status and role of traditional leadership are recognised subject to the Constitution. It further states that a traditional authority that observes a system of customary law may function subject to applicable legislation and customs, including amendments to or repeal of that legislation and those customs, and that courts must apply customary law where it is applicable, subject to the Constitution and relevant legislation.

[43] The import of this section, in the words of Langa DCJ in Bhe, is that customary law 'is protected by and subject to the Constitution in its own right'. Customary law, like any other law, must accord with the Constitution. Like any other law, customary law has a status that requires respect. As this court held in Alexkor v Richtersveld Community, customary law must be recognised as 'an integral part of our law' and 'an independent source of norms within the legal system'. It is a body of law by which millions of South Africans regulate their lives and must be treated accordingly.

[44] As a result the process of determining the content of a particular customary-law norm must be one informed by several factors. First it will be necessary to consider the traditions of the community concerned. Customary law is a body of rules and norms that has developed over the centuries. An enquiry into the position under customary law will therefore invariably involve a consideration of the past practice of the community. Such a consideration also focuses the enquiry on customary law in its own setting rather than in terms of the common-law paradigm, in line with the approach set out in Bhe. Equally. as this court noted in Richtersveld, courts embarking on this leg of the enquiry must be cautious of historical records, because of the distorting tendency of older authorities to view customary law through legal conceptions foreign to it.

[45] It is important to respect the right of communities that observe systems of customary law to develop their law. This is the second factor that courts must consider. The right of communities under s 211(2) includes the right of traditional authorities to amend and repeal their own customs. As has been repeatedly emphasised by this and other courts, customary law is by its nature a constantly evolving system. Under pre-democratic colonial and apartheid regimes, this development was frustrated and customary law stagnated. This stagnation should not continue, and the free development by communities of their own laws to meet the needs of a rapidly changing society must be respected and facilitated.

[46] It follows that the practice of a particular community is relevant when determining the content of a customary-law norm. As this court held in Richtersveld, the content of customary law must be determined with reference to both the history and the usage of the community concerned. 'Living ' customary law is not always easy to establish and it may sometimes not be possible to determine a new position with clarity. Where there is, however, a dispute over the law of a community, parties should strive to place evidence of the present practice of that community before the courts, and courts have a duty to examine the law in the context of a community and to acknowledge developments if they have occurred.

[47] Thirdly courts must be cognisant of the fact that customary law, like any other law, regulates the lives of people. The need for flexibility and the imperative to facilitate development must be balanced against the value of legal certainty, respect for vested rights, and the protection of constitutional riqhts.

[48] Furthermore, while development of customary law by the courts is distinct from its development by a customary community, a court engaged in the adjudication of a customary-law matter must remain mindful of its obligations under s 39(2) of the Constitution to promote the spirit, purport and objects of the Bill of Rights. This court held in Carmichele v Minister of Safety and Security that the section imposes an obligation on courts to consider whether there is a need to develop the common law to bring it into

line with the Constitution, and to develop it if so. The same is true of customary law.

[49] To sum up: where there is a dispute over the legal position under customary law, a court must consider both the traditions and the present practice of the community. If development happens within the community, the court must strive to recognise and give effect to that development, to the extent consistent with adequately upholding the protection of rights. In addition, the imperative of s 39(2) must be acted on when necessary: and deference should be paid to the development by a customary community. of its own laws and customs where this is possible, consistent with the continuing effective operation of the law.

[20] In Moropane v Southon[3] Boseilo JA provided the following guidance with reference to previously decided cases:

"[38] How then does a court determine what the current customary law, called 'the living customary law', applicable to a particular case is? This question has proved to be problematic for our courts. Whilst grappling with this polemic, the Constitutional Court lit the dark pathway in Bhe v Magistrate, Khayelitsha above at para [150] where it stated:

'How to ascertain indigenous law?

[150] There are at least three ways in which indigenous law may be established. In the first place, a court may take judicial notice of it. This can only happen where it can readily be ascertained with sufficient certainty. Section 1(1) of the Law Evidence Amendment Act 45 of 1988 says so. Where it cannot be readily ascertained, expert evidence may be adduced to establish it. Finally, a court may consult text books and case law.

[151] Caution, however, must be exercised in relying on case law and text books. In Alexkor we emphasised the need for caution and said:

"(not clear where this quote ends) Although a number of text books exist and there is a considerable body of precedent, courts today have to bear in mind the extent to which indigenous law in the pre-democratic period was influenced by the political, administrative and judicial context in which it was applied. Bennett points out that, although customary law is supposed to develop spontaneously in a given rural community, during the colonial and apartheid era it became alienated from its community origins. The result was that the term "customary law" emerged with three quite different meanings: the official body of law employed in the courts and by the administration (which, he points out, diverges most markedly from actual social practice); the law used by academics for teaching purposes; and the law actually lived by the people.

[152] It is now generally accepted that there are three forms of indigenous law: (a) That practiced in the community; (b) that found in statutes, case law or textbooks on indigenous law (official); and (c) academic law that is used for teaching purposes. All of them differ. This makes it difficult to identify the true indigenous law. The evolving nature of indigenous law only compounds the difficulty of identifying indigenous law.

The evolving nature of indigenous law

[153] Indigenous law is dynamic system of law which is continually evolving to meet the changing circumstances of the community in which it operates. It is not a fixed body of classified rules. As we pointed out in Alexkor:

"In applying indigenous law. it is important to bear in mind that: unlike common law, indigenous law is not written. It is a system of law that was known to the community: practised and passed on from generation to generation. It is a system of law that has its own values and norms. Throughout its history it has evolved and developed to meet the changing needs of the community. And it will continue to evolve within the context of its values and norms consistently with the Constitution" '

[21] More, recently in Mbungela and Another v Mkabi and Others[4] Maya P, writing for the Court succinctly captured what the Constitutional Court stated in Shilubane at paragraph 49:

"[18] The Constitutional Court has cautioned courts to be cognisant of the fact that customary law regulates the lives of people and that the need for flexibility and the imperative to facilitate its development must therefore be balanced against the value of legal certainty, respect for vested rights and the protection of constitutional rights. The courts must strive to recoqnise and give effect to the principle of living actually observed customary law, as this constitutes a development in accordance with the 'spirit, purport and obiects' of the Constitution within the community, to the extent consistent with adequately upholding the protection of rights.

[22] It is accepted that in the normal course of history, customs and traditions within a community have been handed down from generation to generation. This more often than not, was by word of mouth from elders within the community. Such information constitutes hearsay evidence, the probative value of which as in the present matter cannot be determined, as the source/s of such information have pre-deceased the issue calling for adjudication. This does not preclude this Court from considering evidence of custom and tradition handed down from generation to generation, merely because it constitutes hearsay. To do so would be discriminatory of customary law and traditions contrary to the tenets of our Constitution. However, such evidence must be considered as a whole, with independent evidence on the customs and traditions of the Baga-Maidi where available and common cause, to determine its reliability. That brings me to issues of common cause and the issues in dispute.

Issues of common cause and issues in dispute

[23] It is common cause that Mr Tauetsile was acting kgosana at Mothanthanyaneng and Graspan Villages (the Metsana) from 1984 until his removal in 2016.

[24] What is in dispute is, whether or not Mr Tauetsile's family inherited and have been successors in title to bogosana of Mothanthanyaneng and Graspan Villages. In the founding affidavit, Mr Tauetsile claims that his family inherited bogosana of the metsana during the 1950's as descendants of the founding father of their Tribal authority, being Ngake. On this basis, he asserts that his family has been the rightful heirs/successors in title to the bogosana of the metsana, having been recognised by customary law and rules since 1950.

[25] Mr Tauetsile further disputes that the fourth and fifth respondents have any lineage linking them to the bogosana of the metsana. To this end, he claims that the identification of the bogosana of the metsana was done by the third respondent's (the Kgosi) fore-fathers during the 1950's, which precludes the Kgosi from unilaterally changing the customary rules and practice of the Baga-Maidi Tribal Authority by appointing the third and fourth respondents.

[26] Mr Tauetsile in the founding affidavit identifies the purpose of the application as being a challenge to what he describes as his unprocedural removal as acting kgosana and his successor in title's position as kgosana of Mothanthanyaneng and Graspan Metsana in contravention of the North West Traditional Leadership and Governance Act. As shown above, a "kgosana" means a hereditary traditional leader who, inter alia, is recognised as such in terms of this Act. Mr Tauetsile until his removal was recognised as an acting kgosana. What is at the heart of the present matter is whether he was in an acting position as caretaker in the position until the rightful heirs were appointed to the position. In other words, if Mr Tauetsile was rightfully removed, should his family members be recognised as successors in title. If Mr Tauetsile's removal was procedurally correct, that ends the relief sought in prayer 1 of the notice of motion and part of prayer 3 insofar as it relates to Mr Tauetsile. To answer this question the applicability of section 20 of the North West Traditional Leadership and Governance Act to acting kgosana calls for consideration. It is to this question that I first turn.

The removal of Mr Tauetsile as acting kgosana

[27] I re-iterate that Mr Tauetsile was appointed from time to time as an acting kgosana starting in 1984. Mr Tauetsile relies on section 20 of the North West Traditional Leadership and Governance Act to assert that his removal was not procedural.

[28] Mr Tauetsile put much score on being referred to by the people as kgosana and being identified as the rightful kgosana of Mothanthanyaneng by the people. The North West Traditional Leadership and Governance Act underscores that nothing in the Act precludes members of the traditional community from addressing a traditional leader by the traditional title accorded to him or her by custom. However, such traditional title does not derogate from. or add anything to, the status, role and functions of a traditional leader as provided for in this Act. "

[29] Sections 19 and 21 draws a distinct difference between the identification and recognition of kgosana and acting kgosana. Thus while nothing detracts from an acting kgosana being addressed with the traditional title of kgosana accorded to him, the Act does not address the status in terms of custom on the same level. A kgosana is identified for appointment whilst an acting kgosana is recognised to occupy such office. Section 20, which follows immediately on section 19 (which deals with the appointment of kgosana), precedes section 21 which deals with recognition of acting kgosana. That being the case the question is whether section 20 applies to the removal of an acting kgosana who is acting in such position subject always to the rightful heir being identified for appointment as kgosana.

[30] The heading of section 20 "Removal of kgosana" immediately after section 19 clearly speaks to removal of kgosana and not acting kgosana. If section 20 was applicable to acting kgosana, the drafters of the North West Traditional Leadership and Governance Act, I accept, would have dealt with such specifically in the Act. Instead, the legislation is drafted in sequence to deal only with the removal of kgosana and not acting kgosana. This follows logically from the Act, which underscores that the traditional title whilst not derogating from such title. does not add anything to. the status, role and functions of a traditional leader as provided for in this Act.

[31] Section 20 of the North West Traditional Leadership and Governance Act accordingly finds no applicability to the removal of Mr Tauetsile as acting kgosana. Since Mr Tauetsile asserts the relief he seeks in prayer 1 and part of prayer 3 on section 20 of the North West Traditional Leadership and Governance Act and no other custom and tradition of the Baga-Maidi, as he constrained in that regard to what he asserts in the Notice of Motion as amplified in the founding affidavit, the relief in that regard, stands to be dismissed. There is accordingly no need to consider the voluminous evidence presented in this regard on issues related to consultation with Mr Tauetsile and his family.

[32] That brings me to the main basis on which the matter was referred to oral evidence, namely whether or not the Tauetsile family inherited the bogosana of Mothanthanyaneng and Graspan Metsana. Otherwise stated, whether the Tauetsile family members are to be recognised as successors in title.

The relevant evidence on the rightful heirs to the Mothanthanyaneng and Graspan Metsana

[33] Before turning to the evidence a point of clarity needs to be addressed. Counsel for Mr Tauetsile identifies three issues which are to be determined by this Court. Respectfully, those are not the issues which the evidence in the founding papers speaks to. Further, the referral of the matter to oral evidence can never extend the relief sought in the Notice of Motion, for in doing so, that would be creating a new case for the applicant, which the respondents were not called to answer. This Court is constrained to the very narrow issue on which the matter was referred to oral evidence. Mr Tauetsile asserts that his family inherited the Bogosana during the 1950's when his grandfather was allegedly installed as Kgosana by the Kgosi. As will be demonstrated, and in particular, having regard to what is contained in the notice of motion and founding affidavit and the reason for referring the matter to oral evidence, that this Court is not called upon to give a declarator that the Tauetsile's are of Royal descent in the Baga-Maidi community. The emphasis in the founding papers is, predicated on "inheritance". It is for this reason that this judgment will focus only on the evidence relevant to the question of the alleged inheritance of the Bogosana of Mothanthanyaneng and Graspan Metsana, which is said to have occurred during the 1950's.

The applicant's case

[34] I now turn to the relevant evidence of Mr Tauetsile in asserting his case on laying claim that the Tauetsile's are the rightful heirs to the Mothanthanyaneng and Graspan Metsana. Mr Tauetsile sets out the following background in the founding affidavit. It is, on the basis of, these background facts that he makes his case and on which he elaborated in oral evidence. The following relevant background facts are set out at paragraph 13 of the founding affidavit (in brackets the reply to the allegations by the respondents in the answering affidavit is recorded):

"13. BACKGROUND

13.1 Bathlaping Baga-Maidi was established by Government Gazette 444 of 23.3. 1957 and amended by No. 13 of 2.3.1980.

(17.1 1 deny the contents herein.

17.2 All traditional communities and Traditional Councils were recognised by the coming into being of the Bantu Authorities Act 68 of 1951 and the Bogosi was recognised in 1927 by the Black Administration Act 38 of 1927.)

13.2 Kgosi-Kgolo Ngake is the founding father of our Batlhaping BagaMaidi Tribal Council.

(18.1 I deny the contents herein. I have already indicated that there (sic0 Traditional Leaders who came before Kgosi Ngake and that the first Traditional Leader of the Bathlaping Baga-Maidi was Kgosi Maidi).

13.3 The Third Respondent is a descendant of Kgosi-Kgolo Ngake.

(19.1 1 admit the contents herein)

13.4 Tauetsile is the Son of Phutiyagae, and Phutiyagae being the Son of Pitso, and Pitso also being the son of Kgosi-Kgolo Ngake. Therefore, me and the Third Respondent are related as Brothers due to our forefather Kgosi-Kgolo Ngake.

(20.1 1 deny the contents herein. This is mere hearsay that the applicant is not substantiating with any documentary prove (sic).)

13.5 I am the eighth child of the late Gobopamang Solomon Tauetsile and the latter being the son of the late Malepe Tauetsile.

(21.1 1 admit the contents herein)

13.6 Malepe Tauetsile was appointed by the Third Respondent's late Grandfather Moshosho Motlhabane as Kgosana for Mothanthanyaneng and Graspan Metsana which falls within the Batlhaping Baga-Maidi Traditional Council. This appointment date (sic) back to the 1950s period.

(22.1 1 deny the contents herein. I have already mentioned that Kgosi Moshosho died in 1936 which makes it impossible for him to have appointed the applicant's grandfather in the 1950s.

22.2 The applicant's grandfather was never kgosana of any village.)

13.7 Moshosho Mothlabane is the father of the late Nyoko Motlhabane and the latter being the father to the late Walter Letsie Motlhabane, who is the father to the current Kgosi of the Batlhaping Baga-Maidi Traditional Council, the Third Respondent in this case.

(23.1 1 admit the contents herein.)

13.8 Upon Malepe Tauetsile's death his son Solomon Tauetsile was appointed by the late Chief Walter Letsie Motlhabane as the Kgosana of Mothanthanyaneng and Graspan Metsana druing the 1968 era.

(24.1 The contents herein are denied.

24.2 The person who was acting as kgosana on Mothanthanyaneng prior to the applicant's father is Kanono Modisakoma. It is only after the death of Kanono Modisakoma that the applicant's father was requested by Kgosi Walter Letsie to act as kgosana of Mothanthanyaneng in 1968.)

13.9 Subsequent to the death of Solomon Tauetsile in 1984 1 was asked to resign from my employment by the late Chief Walter Letsie Motlhabane, and was appointed, as the acting Kgosana on 15 May 1984.

(25.1 Save to state that what made the applicant to resign from where he was working at South African Railways was to come and take care of his sick father and to look after his father's livestock, the remainder herein is admitted.)

13.10

13.11 It was known at all times that my appointment as acting Kgosana in 1984 was (sic) behalfof my eldest Brother Mr Kesenogile Phutiyagae who was at the time not ready to take his Kgosana position at the time.

(27.1 1 deny the contents herein.

27.2 The reason to appoint the applicant as acting kgosana was motivated by economic reasons because people who were supposed to take over as the rightful heirs were employed outside the village. This was motivated by the fact that during that era, the only person who received a salary was the Senior Traditional Leader.)

13.12to 13.19

13.20 Since 1950s and according to Batlhaping Baga-Maidi Tribal Council customary rules of succession Mothanthanyaneng and Graspan Metsana have for all intended purposes been allocated to the Phutiyagae/Tauetsile Bogosana family to govern and there is no inheritable link between the Fourth and Fifth Respondent's with the Bogosana of Mothanthanyaneng and Graspan Metsana.

(31.1 1 deny the contents herein.

31.2 Graspan remained vacant after the death of Mr R Phepeng who was acting kgosana of Graspan from 26 June 1979 until he passed away.

31.3 Before the submission was made to the then President of Bophuthatswana to recognise the three sub-villages, Graspan was non-existent and historically, Graspan was never patt of Mothanthanyaneng.

31.4 The fourth and fifth respondents are of royal descent and the sons of Pholoholo Motlhabane who was a Traditional Leader of Molelema from 1936 to 1952, a brother to Moshosho Motlhabane.)

13.21 to 13.38

13.39 The Fourth and Fifth Respondents are related to the Third Respondent's and they were never earmarked for any Kgosana leadership to Mothanthanyaneng and Graspan.

13.40 Therefore they are being imposed into those Kgosana leadership positions in contravention of the customary law and rules of the Batlhaping Baga-Maidi read with the laws governing Traditional Leadership in the North West province.

(42.1 Save to admit that the fount) and fifth respondents are related to the third respondent, save further to state that the fourth and fifth respondents are of royal descent and save further to state that the procedure that was followed to terminate the acting position of the applicant and appoint the fourth and fifth respondent (sic) as kgosana of Mothanthanyaneng was in terms of the customs and traditions of the Batlhaping BagaMaidi, the remainder is denied.)

[35] In oral evidence before this Court, Mr Tauetsile sought to extend the basis on which he asserts the right of his family to the bogosana with reference to asserting a link to the Royal family. As stated above, this extends beyond the terms of reference of the matter to oral evidence. The starting point must be what is asserted in the founding affidavit and explained in oral evidence.

[36] The relevant evidence as to the events of the 1950s extracted from the oral evidence is as follows. Mr Tauetsile testified that his grandfather, Malepe Tauetsile was Kgosana of Mothanthanyaneng. Kanono Modisakoma according to Mr Tauetsile further told him before his passing in 1969 that the bogosana belonged to the Tauetsile's. As to how he knew this, he testified under cross examination, that when he was born, his father Gobopomang Solomon Tauetsile was already Kgosana of Mothanthanyaneng but he would see the tribal community flock to his grandfather's place. Further, that Kanono Modisakoma according to Mr Tauetsile had taken over as kgosana from his grandfather who was ill, at the request of his grandfather. When pressed under cross examination for a clear indication as to who appointed his grandfather as kgosana, Mr Tauetsile testified that his grandfather used to go to the then Kgosi Moshosho Motlhabane by horse cart to report on tribal matters at Manthe. This Mr Tauetsile says he found out from his father, Solomon Tauetsile.

[37] It was pointed out to Mr Tauetsile that Kgosi Moshosho Motlhabane passed away in 1936 and could not have appointed his grandfather, Malepe Tauetsile, during the 1950's. It will be recalled that Mr Tauetsile asserts inheritance of the Bogosana during the 1950's when his grandfather, Malepe Tauetsile, was appointed by Kgosi Moshosho Motlhabane who as historical events demonstrate had already passed away by then.

[38] The next aspect of Mr Tauetsile's evidence on which he asserts inheritance of the bogosana is that one of the villages in the Baga-Maidi is named Malepe which should be sufficient proof that his grandfather was a kgosana. To this end he testified that all schools in the BagaMaidi villages are named only after those who were either kgosi or kgosana.

[39] A further bone of contention is the bogosi of Graspan. Mr Tauetsile's evidence is that Graspan consisted of only six houses and as such Graspan and Mothanthanyaneng were regarded as one. His father led these two villages until his passing in 1979. Before his father's passing he approached the then Kgosi, Kgosi Letsie Motlhabane to request him to appoint David R Phepheng to take care of Graspan. When David R Phepheng passed away, Lefengu Phepheng was requested to act as kgosana of Graspan until he passed away.

[40] Mr Ridley Crisp, a white male who on his evidence fully associates himself with the Baga-Maidi, having grown up in Mothanthanyaneng, testified that when he grew up the kgosana of Mothanthanyaneng was Chair Motlhaping. When Chair Motlhaping passed away and his son was called upon to take over, he refused, which led to a certain Senwedi taking over. When Senwedi passed away, his son too did not want to take over which led to Mr Tauetsile's father, Solomon Tauetsile taking over.

[41] Mr Tauetsile's evidence made no mention of either Chair Motlhaping or Senwedi as having been kgosana of Mothanthanyaneng or of their sons having to take over from them when they passed away. On Mr Crisp's version, Mr Tauetsile's father took over as kgosana from Senwedi and not from his father Malepe Tauetsile.

[42] Paul Lesetedi save for testifying that he knew that Solomon Tauetsile worked with Kgosi Letsie Motlhabane, could not say how Solomon Tauetsile came to be appointed as kgosana as he was still young. This being contrary to his confirmatory affidavit that he had full knowledge of the families that constituted the Baga-Maidi and how the Batlhaping Baga-Maidi traditional custom was practiced in appointing Mr Tauetsile's family as bogosana.

[43] Sephatlhe Tauetsile, the son of Kesenogile (Mr Tauetsile's elder /brother) testified that his family inherited the bogosana according to Baga-Maidi customs and traditions, but similarly could not explain how the bogosana was inherited through appointment by Kgosi Moshosho Motlhabane who by the 1950s had already passed away.

[44] Ogoile Motlhabane's evidence was directed in the main at showing a link between the Royal family and the Tauetsile's. Other than that, save for alleging that Malepe was a kgosana, provided no evidence as to his knowledge as to how that happened.

[45] Mary-Jane Modisadihe, the sister of Mr Tauetsile testified that their mother was born Senwedi. The Senwedi's are related to the Mothlabane's on the maternal side of Mr Tauetsile. She was born in 1943. At that stage her grandfather Malepe Tauetsile was already kgosana of Mothanthanyaneng. At some stage Malepe Tauetsile requested Kgosi Moshosho Motlhabane to allow Kanono Modisakoma to act on his behalf as he wanted to look after his cattle, which request was acceded to. This version that in 1943 Malepe was already Kgosana contradicts the evidence of Mr Tauetsile that his family through the appointment of Malepe Tauetsile inherited the bogosana during the 1950's, of which he was very specific.

[46] According to Ms Modisadihe, Malepe Tauetsile passed away in 1963 and Kanono Modisakoma who took over from him, passed away in 1969. Kgosi Letsie Motlhabane who was Kgosi at the time as a result requested her father Gobopamang Solomon Tauetsile to take over as kgosana until his passing in 1983. Notably Ms Modisadihe's evidence whilst contradicting that of her brother Mr Tauetsile, also contradicts that of Mr Crisp.

[47] According to Ms Modisadihe, her father told her that Kgosi Letsie Motlhabane told him that he was rightfully occupying the bogosana of the two villages as it was given to his father Malepe Tauetsile. Notably again, Kgosi Moshosho on the undisputed evidence passed away in 1936 already. When the date of death of Kgosi Moshosho was brought to Ms Modisadihe's attention under cross examination, she relied on what her father is said to have told her.

[48] Ms Modisadihe testified that she was told by Kgosi Letsie Motlhabane that the rightful person to take over as kgosana was Kesenogile but as he was afflicted by mental issues, Mr Tauetsile would act on behalf of the children of Kesenogile.

The respondent's case

[49] Mr Simon Ruthoane for the Department of Arts and Culture, relied on a book by Dr Breutz, the author of a book "Tribes of Taung and Hiberts" published in 1968 premised a study between 1960 and 1963 of the four recognised headman of Batlhaping and their area of jurisdiction. The said book is archived by Government as a source of information. According to Breutz, Mothanthanyaneng at the time was under the leadership of kgosana Benjamin Mogonono Kgantlapane of Molelema village.

[50] His evidence is further that in 1954, the then "Bantu Affairs Department" was requested to provide a list of all traditional leaders in Taung. Four Kgantlapane's were recorded and one Senwedi as recognised headman of Baga-Maidi. The list does not include either Tauetsile's or Phutiyagae's.

[51] According to Mr Ruthoane no one is allowed to act in the stead of a person who has passed away. When a death occurs, the Royal Family should convene with senior paternal uncles to fill the vacancy. Kesenogile passed away in 2006 and there is no record that this was brought to the attention of the Royal Family by Mr Tauetsile or his family. He testified further that it was a requirement as far back as 1948 and 1954 that appointed kgosanas were required to have recognition certificates. The only known and available recognition certificates relevant to the Tauetsile's is that issued to Mr Tauetsile.

[52] When the Department received a request for the creation of headmanship positions, Mr Ruthoane's predecessor, Mr Shilubane established that Graspan and Mothanthanyaneng placed the two Metsana separately on a list with no indication that Malepe Tauetsile was a headman or that Solomon Tauetsile was recognised as a headman. No real challenge of significance was made to this evidence.

[53] Kgosi Nyoko Motlhabane, the current Kgosi, testified that during the tenure of his father Kgosi Letsie Motlhabane most members of the Royal Family were working, which caused him to request members of the traditional community to act as dikgosana. His father had never told him that Malepe Tauetsile was once a headman, which he believes his father to whom he was very close, would have done. He was told by his father that Solomon Tauetsile was at some stage requested by his father to assist as kgosana and had never been issued with any recognition certificate. Mr Tauetsile, according to Kgosi Nyoko, was requested to act and issued with a recognition certificate to enable him to get a stipend from Government.

[54] When he took over as Kgosi, the Royal Family (Motlhabane's) decided to correct the bogosana of the Villages, which fall under the main village of Manthe and in so doing to appoint the rightful heirs to their positions. He further testified that the Royal Family was never informed of the death of Kesenogile in 2006, which would have enabled them to consider the appointment of a kgosana. On his evidence, Mr Tauetsile's appointment as acting kgosana was invalid from the date of passing of Kesenogile in 2006 until his removal in 2016.

[55] On the issue of a school named after Malepe Tauetsile, it was his evidence that Malepe Tauetsile in all probability made a significant contribution to the Baga-Maidi when schools were being built at the behest of Kgosi Letsie Motlhabane.

[56] Kgosi Nyoko further pointed out that acting kgosana were not necessarily appointed only from the Royal Family and provided the example of Paul Lesetedi.

[57] Keatweng Motlhabane's evidence did not assist this Court and the concession is rightfully made by the respondents.

[58] The relevant evidence of Conrad Motlhabane, who has served as the Secretary of the Royal family, even under the rule of Kgosi Walter Letsie Motlhabane, is that Malepe Tauetsile was never a kgosana. On his evidence, when Malepe Tauetsile was still alive, Senwedi was acting kgosana, followed by Kanono Modisakoma and Solomon Tauetsile. A certain Motsage, who was not a Tauetsile, also acted at some stage as kgosana and the same applies to Phepeng who was also not a Tauetsile. Thus different persons, some who were not

Tauetsile's, also acted as kgosana of Mothanthanyaneng.

[59] As with Kgosi Nyoko, he also testified that the fact that a school may have been named after Malepe, could have been dependent on his contribution to the Baga-Maidi or the role he played in the community.

Conflicting versions

[60] The basic premise is that the burden of proof rests on the applicant. Notwithstanding referral of the matter to oral evidence, the versions of Mr Tauetsile and the respondents are conflicting. More importantly, the evidence of Mr Tauetsile and his own witnesses are contradictory. In Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others[5] Nienaber JA set out the approach to be employed in resolving factual disputes as follows:

"[5] On the central issue, as to what the parties actually_ decided, there are two irreconcilable versions. So too on a number of peripheral areas of dispute which mav have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make finding as on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness's candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness's reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step: determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latten But when all factors are equipoised probabilities prevail. '

Discussion

[61] Recollection of events is a fallible process subject to misunderstanding, particularly when subjected to the passing of a considerable passage of time. Mr Tauetsile asserted a very specific case in his founding affidavit as to when the Tauetsile family "inherited" the bogosana of Mothanthanyaneng and Graspan Metsana. The pivotal period was specifically stated as being during the 1950's. The kgosi responsible for installing the Tauetsile's to the bogosana by way of "inheritance" is similarly specifically identified as Kgosi Moshosho Motlhabane.

[62] Whilst Mr Tauetsile tendered his oral evidence in chief with confidence on what was asserted in the founding affidavit as aforesaid, he was at pains under cross examination to explain the circumstances that brought about the appointment of his grandfather to the bogosana. The single difficulty Mr Tauetsile could not explain away is how the appointment of his grandfather was made during the 1950's when Kgosi Moshosho had already passed away in 1936. Whether or not his father told him this or Kanono Modisakoma told him that the bogosana belonged to the Tauetsile's does not explain away the aforementioned predicament of the passing of Kgosi Moshosho in 1936. A further difficulty is that according to Mr Tauetsile, his father was already kgosana when he was born.

[63] Except for the aforesaid evidence relevant to 1950's when Mr Tauetsile asserts the appointment of his grandfather by Kgosi Moshosho, there is no other relevant evidence to consider the alleged inheritance of the bogosana by the Tauetsile's in the 1950's and how that came about. On Mr Tauetsile's own evidence there are internal contradictions which were not satisfactorily explained.

[64] The next most relevant evidence on the 1950 period is the evidence of Mr Tauetsile's sister Mary-Jane Modisadihe. Ms Modisadihe's evidence contradicts that of Mr Tauetsile materially on the issue of the period when the Tauetsile's are alleged to have inherited the bogosana. As with Mr Tauetsile she could not satisfactorily explain the death of Kgosi Moshosho in 1936 which renders her version of events doubtful. Ms Modisadihe was born in 1943, which is seven years after the death of Kgosi Moshosho. On her version, her grandfather Malepe Tauetsile was Kgosana of Mothanthanyaneng at that time. Kgosi Moshosho could therefore not have appointed her grandfather during the 1950's as Mr Tauetsile asserts. Ms Modisadihe further testified that at some stage her grandfather requested Kgosi Moshosho to allow Kanono Modisakoma to act on his behalf as he wanted to look after his cattle, which request was acceded to. This would imply that her grandfather made this request before Kgosi Moshosho's death in 1936 and that Kanono Modisakoma acted as Kgosana from a date prior to 1936 until his death in 1969, as her grandfather passed away in 1963.

[65] On Ms Modisadihe's version Kgosi Letsie Motlhabane at the time of death of Kanono Modisakoma in 1969, requested her father Gobopamang Solomon Tauetsile to take over as Kgosana which reign was until his passing in 1983. This version further contradicts the different versions of Mr Tauetsile that his father Solomon would already have been kgosana during the 1950's.

[66] The evidence of Mr Tauetsile and his sister Ms Modisadihe is the only evidence of relevance on the period when the Tauetsile's are said to have inherited the bogosana of Mothanthanyaneng and Graspan metsana. As demonstrated above, their evidence is sadly not only internally contradictory but mutually destructive. Their evidence, predicated on what they assert was reliable information from their forefathers, lacks credibility. If in fact such information on the inheritance of the bogosana of Mothanthanyaneng was from their forefathers, the evidence demonstrates overwhelmingly that it was misleading. The cogency of their evidence is further destroyed by the evidence of Mr Crisp as will be demonstrated infra.

[67] In my view, with the difficulties inherent in the contradictory evidence of Mr Tauetsile and his sister Ms Modisadihe on the inheritance of the bogosana of Mothanthanyaneng during the 1950s and possibly earlier, that should mark the end of the matter, as the onus which rests on Mr Tauetsile has not been satisfied. For the sake of completeness, I will proceed to highlight further difficulties in Mr Tauetsile's case which is evident from the evidence in particular of Mr Ridley Crisp and which further contradicts the evidence of Mr Tauetsile and Ms Modisadihe.

[68] Mr Crisp testified that he grew up in Mothanthanyaneng. On his version, when he grew up the Kgosana of Mothanthanyaneng was Chair Motlhaping. Notably this would have been at the time when Kgosi Moshosho had already passed away and traversing the period of the 1950s which Mr Tauetsile asserts as the start of the Tauetsile family's reign. According to Mr Crisp, when Chair Motlhaping passed away and his son was called upon to take over, his son refused, which led to a certain Senwedi taking over. Again Senwedi by a process of deduction would have been appointed after the death of Kgosi Moshosho and traversing the period when Mr Tauetsile asserts his family having been at the helm of the bogosana. As with Chair Motlaping, when Senwedi passed away, his son too did not want to take over and this led to Mr Tauetsile's father, Solomon Tauetsile taking over. When compared to Ms Modisadihe's evidence, it

would mean that her father only ascended to the bogosana in 1969 when he took over from Senwedi. In the period prior to 1969, on Mr Crisp's evidence, neither Malepe Tauetsile, Mr Tauetsile's grandfather, or Kanono Modisakoma were at the helm of the bogosana for Mothanthanyaneng. This materially contradicts the evidence of Mr Tauetsile and Ms Modisadihe and further destroys the assertion by Mr Tauetsile that the Tauetsile family ascended to the bogosana during the 1950's. I re-iterate further that Mr Tauetsile made no mention of either Chair Motlhaping or Senwedi as having been Kgosana of Mothanthanyaneng or of their sons having to take over from them when they passed away. Mr Conrad Motlhabane's evidence to a certain extent corroborates that of Mr Crisp, in that he too testified to the reign of Senwedi, whom Mr Tauetsile did not even mention.

[69] The remainder of the oral evidence tendered on behalf of Mr Tauetsile requires no further consideration and neither does the evidence of the respondents, in circumstances where Mr Tauetsile's case is marred by the contradictions as highlighted above. The probabilities do not favour Mr Tauetsile's case and the version of the respondents' is to be preferred.

Conclusion

[70] Mr Tauetsile failed to overcome the burden of proof placed on him as applicant. This Court is in no better position than when the matter served before Djaje J (as she then was), on the papers. Mr Tauetsile was constrained to the papers and very narrow terms on which the matter was referred to oral evidence. He was not at large in adducing oral evidence to expand on the terms of the relief sought in the Notice of Motion. The single most difficult hurdle for Mr Tauetsile was his firm assertion that the bogosana of Mothanthanyaneng was bestowed upon his family, the Tauetsile's, during the 1950's.

[71] The application accordingly stands to be dismissed.

Costs

[72] Costs ordinarily follow the result and remains within the discretion of the Court. An aspect that stands out in respect of costs is an admission from the Royal Family on the less than perfect manner in which Mr Tauetsile was removed from the bogosana. The Royal Family to this end went as far as offering a compensatory financial sum to Mr Tauetsile, in recognition of the fact that he was acting kgosana from 1984 until his removal. A further factor I have considered is that this matter demonstrates that the Royal Family has allowed the occupation of bogosana by acting kgosana for decades before a decision was finally taken to correct the position with the appointment of what the Royal Family describes as the rightful heirs.

[73] In the exercise of my discretion and judiciously so, fairness in my view dictates that no order as to costs be made.

Order

[74] Consequently, the following order, is made:

(i) The application is dismissed.

(ii) No order as to costs.

AH PETERSEN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

For the Applicant

Adv Mmusinyane

Instructed by

MAKULA ATTORNEYS

c/o Morweng Attorneys

Office 9 First Floor

Kelgor House

14 Tillard Street

MAHIKENG

For the First Respondent Adv. Mongale

Instructed by

STATE ATTORNEY

FIRST FLOOR, EAST GALLERY

MEGA CITY

MMABATHO

Dates of Hearing • 26-30 April 2021; 08-12 November 2021; 16

27 May 2022

Head of Argument Filed • 07 July 2022 and 12 July 2022

Heads of Argument Brought

To Judge's Attention • 08 September 2022

Date of Judgment • 07 February 2023

[1] 1944 AD 67 at page 76.

[2] 2009 (2) SA 66 (CC) at paras

[3] [2014] ZASCA 76 at paragraph [38]. See too: MM v MN and Another 2013 (4) SA 415 (CC) at paras [44] and [45]; Premier of the Eastern Cape and Others v Mamo and Others (169/14) [2015] ZAECBHC 14; 2015 (6) SA 400 (ECB); [2015] 4 All SA 107 (ECB) (18 August 2015) at paras [27] -[31].

[4] 2020 (1) SA41 (SCA) at para [181.

[5] 2003 (1) SA 1 1 (SCA) at para [5].