THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case no: 78/2014
In the matter between:

THULAMELA MUNICIPALITY                                   FIRST APPELLANT

THE MUNICIPAL MANAGER: THULAMELA
MUNICIPALITY                                                         SECOND APPELLANT

and

THOVHELE MIDIAVHATHU
PRINCE KENNEDY TSHIVHASE                            FIRST RESPONDENT

TSHIVHASE TRADITIONAL COUNCIL
SECOND RESPONDENT

VALULINE 203 (PTY) LTD

THIRD RESPONDENT

MEC FOR CO-OPERATIVE GOVERNANCE
HUMAN SETTLEMENTS AND
TRADITIONALAFFAIRS:
LIMPOPO PROVINCE

FOURTH RESPONDENT

MINISTER OF RURAL DEVELOPMENT
AND LAND REFORM                                                 FIFTH RESPONDENT

REGISTRAR OF DEEDS: DEEDS

REGISTRATION OFFICE

SIXTH RESPONDENT

Neutral citation: Thulamela Municipality & another v T Tshivhase & others
(78/2014) [2015] ZASCA 57 (30 March 2015)

Coram:
Ponnan, Shongwe and Majiedt JJA, Dambuza and Gorven
AJJA

Heard:                  11 March 2015

Delivered
30 March 2015

Summary: Appeal against dismissal of an exception – a plea of lack of locus
standi in an interlocutory application raised as a point in limine – dismissal of
exception not appealable - judgment not finally determinative of the rights of
the parties.

__________________________________________________________________
ORDER
__________________________________________________________________
On appeal from: Limpopo High Court, Thohoyandou (Mpshe AJ sitting as court
of first instance):
1 The matter is struck off the roll.
2   Each party is ordered to pay its own costs.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Dambuza AJA (Ponnan, Shongwe, Majiedt JJA and Govern AJA
concurring):

[1] The first appellant, the Thulamela Municipality (the municipality),
exercises executive jurisdiction in and around the City of Thohoyandou,
amongst others. The first respondent, Chief Thovhele Midiavhathu Prince
Kennedy Tshivhase (Khosi Tshivhase), is a traditional leader who exercises
traditional authority over the Ha-Tshivhase villages located in and around
Thohoyandou. He is assisted in his duties by the second respondent, the
Tshivhase Traditional Council (the council).

[2] On 23 February 2012 the municipality sold erven 22 and 26 Thohoyandou
IA to Valuline (Pty) Ltd for R579 150 each. The properties were transferred to
Valuline on 11 June 2012 by virtue of Deeds of Grant. On the same day two
other properties, erven 21 and 27 Thohoyandou IA were also transferred by the
Registrar of Deeds to Valuline.

[3] On 18 February 2013, Khosi Tshivhase and the council launched an
application (the main application) in the Limpopo High Court seeking to have
reviewed and set aside the decisions by the municipality to alienate the
properties. The grounds of review were, amongst others, that the decisions to
alienate the properties were unconstitutional, illegal, arbitrary, irrational, unfair,
inequitable, unreasonable, were taken without consultation or authorisation and
were based on inaccurate or wrong information.
[4] The municipality did not timeously file its answering affidavit to the main
application. Khosi Tshivhase and the council also sought from the municipality
and the municipal manager, in terms of rule 53 of the Uniform Rules of court,
the record relevant to the decisions to alienate the properties. When the
municipality failed to furnish the required record, they launched an interlocutory
application to compel the municipality to produce it. The municipality then filed
two sets of affidavits, one in opposition to the main application and one in
opposition to the interlocutory application. In both, the municipality challenged,
in limine, Khosi Tshivhase and the council‟s locus standi. It contended that they
had an obligation to prove on the papers that they were traditional leaders as
provided in the Traditional Leadership and Governance Framework Act 41 of
2003, as well as the Limpopo Traditional Leadership and Institutions Act 6 of
2005. It challenged them to produce the government gazette in which they were
recognised by the Premier of Northern Limpopo as traditional institutions. It
was alleged on behalf of the municipality that Khosi Tshivhase‟s claim to
traditional leadership was rejected by the Nhlapo Commission which was

established by former President Thabo Mbeki, in October 2004, to determine the
traditional leadership of the Venda people, amongst others. Regarding the merits
of the application, the municipality pleaded that the properties in question did
not fall under the jurisdiction of Khosi Tshivhase and the council.

[5] The issue of locus standi, as raised in the interlocutory application, was
heard before Mpshe AJ who considered the point in limine as an exception and
dismissed it. He made no order as to costs. It is against that order that the
municipality appeals.

[6] Although not raised by any of the parties in the appeal, prior to the
hearing of the appeal counsel were asked to address the issue whether the order
of the court a quo was appealable. Counsel for the municipality submitted that
the dismissal of the exception was appealable. The argument, on behalf of the
municipality was based on an understanding that the order of the court a quo
was a pronouncement on the rights of Khosi Tshivhase and the council to
institute the application and was thus finally dispositive of that issue.

[7] The dismissal of an exception, save an exception to jurisdiction, does not
finally dispose of the issue raised by the exception and is not appealable.1  In
Maize Board v Tiger Oats Ltd & others,2 Streicher JA referred with approval to
the following remarks by Schutz JA in Cronshaw & another v Fidelity Guards
Holdings (Pty) Ltd:3
„The question is intrinsically difficult, and a decision one way or the other may produce some
unsatisfactory results. There has to be a rule, however, and that rule was laid down by not
later than the Pretoria Garrison case [Pretoria Garrison Institutes v Danish Variety Products
(Pty) Ltd 1948 (1) SA 839 (A)]. It is, as stated by Schreiner JA (at 870) that:

1 D E Van Loggerenberg SC (2014) Erasmus Superior Courts Practice; Revision Service 45 at B1-152.
2 Maize Board v Tiger Oats Ltd & others 2002 (5) SA 365 (SCA) at 373.
3 Cronshaw & another v Fidelity Guards Holdings (Pty) Ltd 1996 (3) SA 686 (A) at 690 D-G.

“… a preparatory or procedural order is a simple interlocutory order and therefore not
appealable unless it is such as to „dispose of any issue or any portion of the issue in the main
action or suit‟, or which amounts, I think, to the same thing, unless it irreparably anticipates
or precludes some of the relief which would or might be given at the hearing.‟”
Streicher JA concluded (para 14): „. . . it now has to be accepted that a dismissal
of an exception (save an exception to the jurisdiction of the Court), presented
and argued as nothing other than an exception does not finally dispose of the
issue raised by the exception and is not appealable‟. In arriving at this
conclusion Streicher JA stated that the order made was capable of being
reconsidered and that the decision on exception was not the final word on the
point. He thus expressed the view that laying down that general principle would
„create certainty and accordingly be in the best interests of litigating parties‟. On
the strength of Maize Board, it is plain that the order of Mpshe AJ was not
appealable. But that is not the end of the matter.

[8] A further difficulty that arises in this case was raised with counsel for
Khosi Tshivhase and the council. This relates to the relief sought in the main
application: the review and setting aside of the decisions to alienate the
properties. It is evident that, even if obtained, the relief sought would be
ineffective. This is because the properties in question were transferred to
Valuline in 2012. When Khosi Tshivhase and the council launched the main
application transfer of the properties or the rights thereto to Valuline, had long
been completed. It thus can hardly assist Khosi Tshivhase and the council to
now challenge the administrative decisions that preceded the registration and
transfer of the property into the name of Valuline. That is so because in Legator
McKenna Inc & another v Shea & others 2010 (1) SA 35 (SCA) para 22, this
court accepted that the abstract theory of transfer applies to immovables as well.
In the light thereof it appears to me that the main application may well be
academic. For that reason, I am of the view that although the order of Mpshe AJ
was not appealable, Khosi Tshivhase and the council may have misconceived

their relief in the main application. In those circumstances the appropriate costs
order is that each party should pay its own costs.

[9] Consequently I make the following order:
1 The matter is struck off the roll.
2 Each party is to pay its own costs.

______________
N DAMBUZA
Acting Judge of Appeal

APPEARANCES
For Appellants:

G J Diamond
Instructed by:
Khathutshelo A Mainganye Attorneys,
Thohoyandou
Webbers, Bloemfontein

For First and Second Respondent:
Lebala SC with EM Baloyi -Mere

Instructed by:
Anton Ramaano Attorneys, Thohoyandou
Matsepes, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

30 March 2015

STATUS

Immediate

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

Thulamela Municipality & another v T Tshivhase & others
(78/2014) [2015] ZASCA 57 (30 March 2015)

MEDIA STATEMENT

Today the Supreme Court of Appeal (SCA) struck off the roll an appeal by Thulamela municipality
against a judgment of the Limpopo high court which dismissed a plea by the municipality that Khosi
Thove Tshivhase and his traditional council had no locus standi to bring an interlocutory application
against the municipality.

In the interlocutory application Khosi Tshivhase required the municpality to produce a record of
proceedings relating to the sale and transfer of certain property, in 2012, by the municipality to
Valuline Pty Ltd.

In 2012, the municipality sold erven 22 and 26 Thohoyandou IA to Valuline for R519 150 each. On 11
June 2012 the two properties were transferred to Valuline together with two other properties, erven 21
and 26. .

Khosi Tshivhase and his council then brought an application in the Limpopo High Court seeking to
have reviewed and set aside, the decisions by the municipality to alienate the properties.
In opposing the main application the municipality challenged Khosi Tshivhase and the council’s right
to launch the application. It contended that they had an obligation to prove, in the summons, that they
were traditional leaders as provided for in the Traditional Leadership and Governance Framework Act

41 of 2003, as well as the Limpopo Traditional Leadership and Institutions Act 6 of 2005. The high
court dismissed the challenge to Khosi Tshivhase’s right.

On appeal, although not raised by any of the parties, prior to the hearing of the appeal counsel were
asked to address the issue whether the order of the Limpopo high court. The municipality submitted
that the order was appealable. The argument, on behalf of the municipality was based on an
understanding that the order of the court a quo was a pronouncement on the rights of the
respondents to institute the application and was thus finally dispositive of that issue

The SCA held that the dismissal of an exception, save an exception to jurisdiction, does not finally
dispose of the issue raised by the exception and was therefore not appealable.

The court held further that the relief sought in the main application, ie the review and setting aside of
the decisions to alienate the properties, if obtained would be ineffective as the properties had already
been transferred to the respondent in 2012.

~~~ ends ~~~