REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO LOCAL DIVISION, THOHOYANDOU

CASE NO. 1064/2019
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 10.03.2025
SIGNATURE:

In the matter between:

MUTHAPHULI ROYAL FAMILY
	FIRST APPLICANT	
MICHAEL MUTHAPULI
	SECOND APPLICANT	
and
		
MUTHAKHI ROYAL FAMILY
	FIRST RESPONDENT	
MUTHAKHI PERCY
	SECOND RESPONDENT	
In re
		
MUTHAKHI ROYAL FAMILY
	FIRST APPLICANT	
MUTHAKHl MATODZl ABEL
	SECOND APPLCANT	
and
		
MEMBERS OF THE MUTHAKHI ROYAL
 FAMILY OR THEIR NOMINEES OR
 AGENT
	FIRST RESPONDENT
	
MUTHAPHULI NTSHIMISENI 
	SECOND RESPONDENT	
MTHAPHULI ALUKHWATHI 
	THIRD RESPONDENT	
MUTHAPHULI NDITSHENI 
	FOURTH RESPONDENT	
NETSHANDAMA CHRISTOPHER 
	FIFTH RESPONDENT	
BALOYI TJATJANI SOLOMON 
	SIXTH REPONDENT	
MUKHUMO HERMAN
	SEVENTH RESPONDENT	
MPHAPHULI TRADITIONAL COUNCIL
	EIGHTH RESPONDENT

JUDGMENT

SEMENYA DJP

[1]	The applicants in this matter seek an order in terms of which the order of Makhafola J (as he then was), dated the 07 October 2019 under case number 1064/2019 is set aside by this court. Makhafola J granted the order that restrained the second to the eighth respondents in that application from interfering and disrupting the applicants in that case, in their day to day exercise of authority in administering the affairs of Mphireleni village. The first respondent was the first applicant in that matter.

[2]	The historical facts of this case as they appear from the founding affidavit is that one Mrs Tshavhungwe Muthaki (born Muthaphuli} who was holding the position of a regent passed on during 2014. Her son who was the second applicant when the matter came before Makhafola J, assumed the position of a headman. However, the Royal Council refused to recognise him as a headman.

[3]	In view of the contestations, the first and second respondents in this matter approached the court in 2019 purporting to be the traditional structure that holds the authority to exercise power within the village. The applicants allege that the second applicant has since been recognised by the Premier of Limpopo as the headman of Budeli village. The recognition happened in 2023. The applicants aver that despite this recognition, the second applicant and the elected members of the royal council are unable to manage the financial and traditional affairs of their village. This is so because the respondents are claiming to be the correct structure to exercise authority on the basis of the Judgment and the order of Makhafola J. It is for this reason that the applicants approached this court seeking an order in terms of which the 2019 order is set aside to enable them to have authority over the community.

[4]	The order sought by the applicant will, if granted, violate the Constitution of the Republic of South Africa, 1996. Section 165(5) provides that an order or decision of the court binds all persons to whom and organs of state to which it applies. The Constitutional Court said the following in Municipal Manager O.R Tambo District Municipality and Another v Ndabeni

"[23] Trite, but necessary it is to emphasise this Court's repeated exhortation that constitutional rights and court orders must be respected. An appeal or review - the latter being an option in the case of an order from the Magistrates' Court - would be the proper process to contest an order. A court would not compel compliance with an order if that would be "patently at odds with the rule of law" Notwithstanding, no one should be left with the impression that court orders - including flawed court orders - are not binding, or that they can be flouted with impunity.

[5]	This Court in State Capture reaffirmed that irrespective of their validity, under section 165(5) of the Constitution, court orders are binding until set aside. Similarly, Tasima held that wrongly issued judicial orders are not nullities. They are not void or nothingness, but exist in fact with possible legal consequences. If the Judges had the authority to make the decisions at the time that they made them, then those orders would be enforceable."

[6]	It follows that the order of Makhafola J can only be set aside by a court sitting as a review or an appeal court. It cannot be done in a motion court before a single judge as the applicant believe. The relief sought by the applicants cannot be granted on that basis.

[7]	None of the respondents opposed the application. I will therefore not grant a costs order against any of them.

[8]	In the result I make the following order:

1.	The application is dismissed with no order as to costs

MV SEMENYA DEPUTY 
JUDGE PRESIDENT
LIMPOPO LOCAL DIVISION, THOHOYANDOU

APPEARANCES

1.	For the Applicants	Adv G Maluleke 
	Instructed by		Netshilema Attorneys
				Thohoyandou
	Email			admin@netshilemaattorneys.co.za

3.	Date of argument	22 October 2024

4.	Date of Judgment	10 March 2025

Delivery: This judgment was handed down electronically by circulation to the parties' legal representatives via email and release to SAFLII. The date and time of hand-down is deemed to be the 10 March 2025 at 16:00.