THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 1108/2019
In the matter between:
MOREKWA FRANCINAH THOBEJANE                               FIRST APPELLANT
MASEBOTI SIMON PHOLWANE                                      SECOND APPELLANT
CEDRICK PHOLOSHI MOGOBA                                           THIRD APPELLANT
MOLOHLANYE WILLIAM PHALA                                   FOURTH APPELLANT
KGOLANE DAPHNEY THOBEJANE                                    FIFTH APPELLANT
and
PREMIER OF LIMPOPO PROVINCE

FIRST RESPONDENT
MEC FOR TRADITIONAL AFFAIRS OF
LIMPOPO PROVINCE                                              SECOND RESPONDENT

Neutral citation: Thobejane and Others v Premier of the Limpopo Province and
Another (Case no 1108/2019) [2020] ZASCA 176 (18 December 2020)
Coram:
PETSE DP, ZONDI and MAKGOKA JJA and MABINDLA-
BOQWANA and POYO-DLWATI AJJA
Heard:
23 November 2020

Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, and by publication on the Supreme Court of
Appeal website and release to SAFLII. The time and date for hand down is deemed
to be 10h00 on the 18th day of December 2020.
Summary: Civil procedure – court ruling on preliminary point and later reversing
its own order – court functus officio and the second order is incompetent and a nullity
– jurisdiction of the Supreme Court of Appeal (the SCA) – not triggered where high
court had not given judgment or order on the issue sought to be argued on appeal –
no discernable reason why leave to appeal was granted to the SCA.

__________________________________________________________________
ORDER
__________________________________________________________________

On appeal from: Limpopo High Court, Polokwane (Semenya J sitting as court of
first instance):
The appeal is upheld with no order as to costs.
The order of the high court dated 17 May 2019 is set aside.
The matter is remitted to the high court to determine the merits of
the review application.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Makgoka JA (Petse DP and Zondi JA and Mabindla-Boqwana and Poyo-
Dlwati AJJA concurring):
[1] This appeal concerns two mutually exclusive orders issued by the same judge
in respect of the same issue. The first to fifth appellants had launched an application
in the Limpopo High Court, Polokwane (the high court) seeking to review and set
aside the decision of the respondents, the Premier of Limpopo (the Premier) and the
Member of the Executive Committee for Traditional Affairs, Limpopo (the MEC),
not to recognise them as traditional leaders1 of the Tjatje Community (the
community) in Limpopo. The appellants sought an order compelling the respondents
to do so. In their opposition to the relief sought by the appellants, the respondents

1 The first appellant sought recognition as Khoshigadi (Chieftainess); the second to fourth appellants as headmen,
respectively, and the fifth appellant as a headwoman.

raised a two-pronged preliminary point of non-joinder. They averred that the
appellants had failed to join two parties, whom, according to the respondents, had a
direct and substantial interest in the relief sought by the appellants.

[2] The first of the parties alleged to have such interest was the Commission on
Traditional Leadership Disputes and Claims of the Limpopo Provincial Committee
(the Commission), which had investigated the disputes about traditional leadership
in the community. The first respondent’s decision not to recognise the appellants as
traditional leaders was based on the report of the Commission. The respondents also
contended that a structure which was in control of community, the Marota-
Mohlaletsi Traditional Council, ought also to have been joined in the proceedings.

[3] The application came before Semenya J on 24 April 2019. After hearing
arguments on the preliminary point referred to above, the learned Judge made the
following ruling:
‘The application before me relates to the [re]view of the decision made by the Premier in this
matter, the decision which [he] has exercised or supposed to have been exercised in terms of
section 12 of the Act and I agree with the applicant[s] that it was not necessary for the applicant[s]
to join the parties that are supposed to… that the respondent[s] says should have been join[ed] in
this matter. I do not see how they have a substantial interest in the outcome of this application. The
points in limine are therefore dismissed.’

[4] The preliminary point having been dismissed, the parties argued the merits of
the review application before the learned Judge, after which she reserved judgment.
On 17 May 2019 Semenya J delivered judgment. In paragraph 2 thereof, she
revisited the respondents’ preliminary point of non-joinder referred to earlier. Why
she did so is, however, nowhere explained in her judgment. The learned Judge took
the view that in respect of the Commission, no purpose would be served by

considering whether it should be joined as a party to the proceedings as it had since
dissolved. She proceeded to consider the averred non-joinder of the traditional
council, at the end of which she concluded as follows:
‘The respondents’ second point in limine that the applicants’ failure to join the Marota-Mohlaletsi
Traditional Council constitutes a misjoinder2 is upheld.’
The learned Judge accordingly struck the application from the roll with costs, but
subsequently, issued an order granting leave to the appellants to appeal to this Court.

[5] Before I consider the parties’ submissions in this Court, it is prudent to first
determine whether the order of 24 April 2019 dismissing the respondents’
preliminary point of non-joinder, was final in effect. In Zweni v Minister of Law and
Order3 it was held that an order that is final in effect has three attributes: first, the
decision must be final in effect and not susceptible to alteration by the court that
made it; second, it must be definitive of the rights of the parties; and third, it must
have the effect of disposing of at least a substantial portion of the relief claimed in
the main proceedings. There are no conceptual difficulties with regard to the first
two. As to the third attribute, the question is whether the ‘relief claimed’ is restricted
to the relief claimed by the plaintiff/applicant. In Caroluskraal Farms v Eerste
Nasionale Bank4 it was held that it includes the relief claimed by the
defendant/respondent in the form of special pleas and preliminary points. Therefore,

2 Presumably the learned judge meant ‘non-joinder’.
3 Zweni v Minister of Law and Order [1993] 1 All SA 365 (A); 1993 (1) SA 523 (A) at 536B. Zweni has undergone
some modification over the years. See for example Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service
1996 (3) SA 1 (A); Philani-Ma-Afrika and Others v Mailula and Others [2009] ZASCA 115; [2010] 1 All SA 459
(SCA); 2010 (2) SA 573 (SCA); Nova Property Group Holdings Limited v Cobbett and Others [2016] ZASCA 63;
[2016] 3 All SA 32 (SCA); 2016 (4) SA 317 (SCA). However, none of these find application in this case.
4 See Caroluskraal Farms (Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk, Red Head Boer Goat (Edms)
Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk; Sleutelfontein (Edms) Bpk v Eerste Nasionale Bank van Suider-
Afrika Bpk 1994 (3) SA 407 (A) at 415B-416A; Durban’s Water Wonderland (Pty) Ltd v Botha and Another [1999]
1 All SA 411 (A); 1999 (1) SA 982 (SCA) at 992G-H; Ndlovu v Santam Ltd 2006 (2) SA 239 (SCA) para 9.

in the context of the present case, the dismissal of the respondents’ preliminary point
thus disposes of a substantial portion of the relief sought.5

[6] Viewed in light of the above, the order of 24 April 2019 in respect of the
preliminary point, indubitably had all three of the Zweni attributes. Accordingly, the
high court was not competent to revisit it. As explained in Firestone v Genticuro,6
as a general rule, a court has no power to set aside or alter its own final order, as
opposed to an interim or interlocutory order, for two reasons. First, once a court has
pronounced a final judgment, it becomes functus officio as its authority over the
subject matter ceases. The second is the principle of finality of litigation, it being in
the public interest that litigation be brought to finality.7

[7] Thus, counsel for the parties agreed that the court a quo’s order of 17 May
2019 constituted a nullity, which falls to be set aside. They parted ways, however,
on the further conduct of the matter. On the one hand, counsel for the respondents
submitted that the matter should be remitted to the high court for that court to give
judgment on the merits of the application. On the other, it was submitted on behalf
of the appellants that this Court should itself determine the merits of the review
application, as, so went the argument, this Court is in as good a position as the high
court to do so. Counsel further submitted that should the merits be decided in the

5 Compare Limpopo Legal Solutions v Vhembe District Municipality and Others [2017] ZACC 30; 2018 (4) BCLR
430 (CC) para 10.
6 Firestone South Africa (Pty) Ltd v Genticuro AG [1977] 4 All SA 600 (A); 1977 (4) SA 298 (A) at 306F-G and
309A.
7 See also Minister of Justice v Ntuli 1997 (2) SACR 19 (CC); 1997 (6) BCLR 677 (CC); 1997 (3) SA 772 (CC) paras
22 and 29; Zondi v MEC, Traditional and Local Government Affairs and Others 2006 (3) BCLR 423 (CC); 2006 (3) 1
(CC) para 28; Freedom Stationery (Pty) Limited and Others v Hassam and Others [2018] ZASCA 170; 2019 (4) SA
459 (SCA) para 16.

appellants’ favour, we should substitute the Premier’s decision with our own, in
terms of which the appellants are recognised as traditional leaders, instead of
remitting the matter to the Premier for reconsideration.

[8] The path suggested by the appellants faces two insurmountable obstacles.
First, this Court’s jurisdiction to determine the merits has not been triggered. The
high court made no findings on the merits, and strictly confined itself to the
preliminary point of non-joinder. This is unlike a case where the high court, in its
ruling on the preliminary point, had given an indication that it was inclined to dismiss
the application. Under those circumstances, it could conceivably be contended that
the outcome is a foregone conclusion.

[9] That cannot be said to be the case here. The substantive issues in dispute have
not been decided by the high court, and consequently, no leave to appeal has been
granted in respect of those issues. Differently put, until the high court pronounces
on the substantive issues relating to the right of the appellants to be appointed as
traditional leaders, and leave is granted to this Court, this Court has no jurisdiction
to consider the merits of the review application. Were we to do so, we would
impermissibly usurp the function of the high court to ordinarily sit and pronounce as
a court of first instance.

[10] In Theron v Loubser8 this Court had occasion to consider a similar situation.
There, the respondents had raised a preliminary point that the applicants lacked the
necessary locus standi to bring the three applications before court. The high court
had upheld the respondents’ preliminary point in two of the applications. It

8 Theron NO and Another v Loubser NO and Others, In Re: Theron N.O and Another v Loubser and Others [2013]
ZASCA 195; [2014] 1 All SA 460 (SCA); 2014 (3) SA 323 (SCA).

dismissed the applications on that ground alone, and deemed it not necessary to
consider the merits of the applications. On appeal, this Court reversed the high
court’s finding on locus standi but declined to consider the merits of the applications.
Instead, it remitted the matter to the high court. With reference to Caroluskraal v
Eerste Nasionale Bank this Court reasoned as follows (at para 21):
‘The entire record of the proceedings did not serve before this court on appeal. The record came
to be limited by agreement between the parties in the light of the solitary issue that had been
decided by the high court and which, in turn, required determination on appeal. But even if the full
record had served before us, the high court had declined to enter into a consideration of any of the
other issues in the application. This court has thus been deprived of the benefit of the high court’s
view on any of those issues. In the result this court will in effect be sitting both as a court of first
instance, as also, a court of appeal insofar as those issues are concerned. It follows that the matter
has to be remitted to the high court for a determination of each of the two applications which are
the subject of this appeal. In the event, it was agreed from the bar in this court that that course
should be adopted. For the rest, it will be left to the Judge President of the Western Cape High
Court to issue directions to the parties as to the further conduct of the matter in that court.’
The second obstacle is that a substitution order is not to be lightly made, and a court
would adopt such a course only in exceptional circumstances. Pursuant to an
administrative review under s 6 of the Promotion of Administrative Justice Act 3 of
2000 and once administrative action is set aside, s 8(1) affords courts a wide
discretion to grant ‘any order that is just and equitable’. In exceptional
circumstances, s 8(1)(c)(ii)(aa) affords a court the discretion to make a substitution
order. In Trencon v IDC9 the Constitutional Court explained how an order of
substitution should be considered:
‘[G]iven the doctrine of separation of powers, in conducting this enquiry there are certain factors
that should inevitably hold greater weight. The first is whether a court is in as good a position as
the administrator to make the decision. The second is whether the decision of an administrator is

9 Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and Another
[2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) para 47.

a foregone conclusion. These two factors must be considered cumulatively. Thereafter, a court
should still consider other relevant factors. These may include delay, bias or the incompetence of
an administrator. The ultimate consideration is whether a substitution order is just and equitable.
This will involve a consideration of fairness to all implicated parties. It is prudent to emphasise
that the exceptional circumstances enquiry requires an examination of each matter on a case-by-
case basis that accounts for all relevant facts and circumstances.’

[11] In the present case, I am by no means persuaded that we are in as good a
position as the Premier to substitute our own decision. From even a cursory reading
of the papers, there are a number of issues that would seek further clarification. One
springs to mind, and it relates to the position of Mr Nthobeng Thobejane, the
community’s current headman, who is said to be mentally challenged, but continues
to receive a stipend from the provincial government in that capacity. His position
must be clarified, and possibly, he might have to be joined as a party to the
proceedings, as the order sought by the appellants appears to have a direct bearing
on him. As to the decision of the Premier, there is no suggestion before us that such
is a foregone conclusion, or that it is tainted by bias, incompetence or malice. Given
these considerations, I discern no exceptional circumstances to move this Court to
make a substitution order.

[12] The matter must in all circumstances be remitted to the high court to determine
the merits of the review application. We were informed during the hearing that the
first appellant has since died. This should have no effect on the order for remittal to
the high court. If that court determines that she was entitled to be appointed as
Kgoshigadi, her natural successor would surely be substituted for her.

[13] There remains the issue of costs. Counsel for the appellants pressed for costs
against the respondents on the basis that the appellants would have achieved
substantial success in this Court were the order of 17 May 2019 to be set aside. On
the other hand, counsel for the respondents pointed out that in their notice of appeal
and in their heads of argument, the appellants, not only sought to set aside that order,
but also urged this Court to consider the merits. Thus, so went the submission, the
respondents were duty bound to oppose the appeal to the extent the appellants
persisted with the latter relief. In my view, there is something to be said about this
submission. Had the appellants simply confined themselves to the attack on the
impugned order, and not sought to have the merits determined by this Court, the
appeal would probably have been unopposed. In the circumstances it would only be
fair to make no order as to costs.

[14] Before I conclude, I am constrained to comment on the high court’s decision
to grant leave to this Court. That leave to appeal was correctly granted is beyond
question. The high court recognised the irregularity of its order of 17 May 2019. But
as to why leave was granted to this Court, escapes me. There is nothing in the issues
canvassed here which even remotely warrants the attention of this Court. No
controversial legal principle was involved. As this Court pointed out in Shoprite
Checkers v Bumpers Schwarmas,10 the inappropriate granting of leave to appeal to
this court increases the litigants’ costs and results in cases involving greater
difficulty and which are truly deserving of the attention of this court having to

10 Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others [2003] ZASCA 57; [2003] 3 All SA
123 (SCA) para 23. See also S v Monyane and Others [2006] ZASCA 113; 2008 (1) SACR 543 (SCA) para
28.

compete for a place on the court’s roll with a case which is not. This must be
deprecated.

[15] The following order is made:
The appeal is upheld with no order as to costs.
The order of the high court dated 17 May 2019 is set aside.
The matter is remitted to the high court to determine the merits of
the review application.
____________________
T M Makgoka
Judge of Appeal

APPEARANCES:
For Appellants:
J L Griffiths
Instructed by:
Eiser & Kantor, Johannesburg

Lovius Block, Bloemfontein.

For Respondents:
P M Maake
Instructed by:

State Attorney, Polokwane

State Attorney, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY
JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM
The Registrar, Supreme Court of Appeal

DATE
18 December 2020

STATUS
Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.

Thobejane and Others v Premier of the Limpopo Province and Another (Case no 1108/2019)
[2020] ZASCA 176 (18 December 2020).
Today, the Supreme Court of Appeal (SCA) upheld an appeal against a judgment of the
Limpopo High Court, Polokwane, in which that court issued an order which effectively
purported to rescind its earlier order. The first to fifth appellants had launched an application
challenging the decision of the respondents, Premier and the Member of the Executive
Committee for Traditional Affairs, Limpopo not to recognise them as traditional leaders of the
Tjatje Community in Limpopo. The appellants sought an order compelling the respondents to
do so. The respondents raised a preliminary point of non-joinder of the Commission on
Traditional Leadership Disputes and Claims of the Limpopo Provincial Committee (the
Commission), which had investigated the disputes about traditional leadership in the
community, and the Marota-Mohlaletsi Traditional Council. On 24 April 2019 the court
dismissed the preliminary point, after which the merits of the review application were argued.
The court reserved judgment. On 17 May 2019 the court delivered judgment in which it
revisited the respondents’ preliminary point of non-joinder, and upheld it. It accordingly struck
the application from the roll with costs, but subsequently granting leave to the appellants to
appeal to the SCA.
The SCA first considered whether the order of 24 April 2019 dismissing the respondents’
preliminary point of non-joinder, was final in effect, and therefore, not susceptible to alteration
or amendment by the high court. It referred to Zweni v Minister of Law and Order [1993] 1 All
SA 365 (A); 1993 (1) SA 523 (A) at 536B and concluded that indeed the order had all the
attributes of a final order and therefore, the high court was not competent to revisit it, as it was
functus officio. Viewed in that light, it followed that the order of 17 May 2019 constituted a
nullity, which had to be set aside.

As to the further conduct of the matter, the court considered the appellants’ submission that it
should itself determine the merits of the review application, because, as was the submission,
this court was in as good a position as the high court to do so to substitute the premier’s decision
with its own, in terms of which the appellants are recognised as traditional leaders, instead of
remitting the matter to the Premier for reconsideration. First, the Court declined to consider the
merits of the review application because it jurisdiction had not been triggered, as the high court
had made no findings on the merits, and strictly confined itself to the preliminary point of non-
joinder, and consequently, no leave to appeal had been granted in respect of those issues.
Secondly, the Court observed that a substitution order is not to be lightly made, and a court
would adopt such a course only in exceptional circumstances in terms of s 8(1)(c)(ii)(aa) of the
Promotion of Access to Justice Act 3 of 2000. On the facts of the case, the Court concluded
that it was not in as good a position as the Premier to substitute its own decision, and found no
exceptional circumstances to do so. Accordingly, it determined that the matter be remitted to
the high court to determine the merits of the review application. With regard to costs, the Court
considered that the appellants, not only sought to set aside that order, but also urged the SCA
to consider the merits. This warranted the respondents’ opposition. Had the appellants simply
confined themselves to the attack on the impugned order, and not sought to have the merits
determined by this Court, the appeal would probably have been unopposed. In the
circumstances it would only be fair to make no order as to costs.
In closing, the Court critisised the high court’s decision to grant leave to the SCA, instead to
the full court, in the circumstances where there was no discernable reason to do so, as there
were no issues of law or any compelling factor which warranted the attention of the SCA.
In the circumstances, the Court (per Makgoka JA) with Petse DP, Zondi JA and Mabindla-
Boqwana and Poyo-Dlwati AJJA concurring, upheld the appeal with no order as to costs; set
aside the order of the high court dated 17 May 2019; and remitted the matter to the high court
to determine the merits of the review application.

END