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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.

 

MANGENA AJ

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

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