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Lobelo v Tawana And Others (1184/2005)  ZANWHC 32 (3 July 2008)
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IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
CASE NO. 1184/2005
In the matter between:
LESEGO JANE LOBELO APPLICANT
ALINAH TAWANA 1ST RESPONDENT
CHOSE TAWANA 2ND RESPONDENT
ALL OTHER PERSONS AT SITE 4314 LONELY PARK 3RD RESPONDENT
 This is an application relating to the dispute over the ownership of a residential stand No. 4314, Lonely Park, Mafikeng. This stand is part of the tribal land owned by the Barolong Boo Ratshidi Tribal Authority.
 Evidently, the Applicant paid an amount of R10 000.00 to one Mr Morulaganyi Tawana as the purchase price for that stand. What appears to be an official transfer of that property to the Applicant took place thereafter. The first Respondent thereafter contested the ownership of that stand. Consequently, there are two persons claiming ownership of the same stand.
 The real dispute between the parties is not whether or not the Applicant purchased the stand from Mr Tawana. The issue is whether or not Mr Morulaganyi Tawana was the rightful owner of the stand and could, therefore, lawfully transfer ownership of the stand to the Applicant.
 Two versions have been given regarding the ownership of stand No. 4314, Lonely Park. Mr Morulaganyi Tawana, Mr Kgang Tawana and Mr Abueng allege that some time during 1994, the then Paramount Chief (“Kgosikgolo”) of the Barolong Boo Ratshidi, Kgosi Setumo Montshiwa, decided that the tribal land in Lonely Park be subdivided into stands. This was done and Mr Morulaganyi Tawana was allotted stand No. 4314. In contradistinction to this, the first Respondent says that her husband, in his capacity as headman of Lonely Park, allotted this stand to her. Mr Labius Moralo also alleges that on some unspecified year, he, in his capacity as the Chairman of the Lonely Park Land Allocation Committee, allocated stand No. 4314 to the first Respondent’s husband.
 None of the people who have deposed to affidavits or given some kind of information have told this Court what the correct procedure for the allocation of land is. It is, therefore, not clear whether stands are ordinarily allocated by the Chairman of the Land Allocation Committee of a particular village (if Mr Moralo was in fact the Chairman), or by the headman or by the Paramount Chief, or by some other structure.
 There is an allegation made by the first Respondent that her late husband Ramushu Tawana allotted stand No. 4314 to her during his lifetime, in his capacity as headman of Lonely Park. There is also a statement by Mr Labius Moralo to the effect that he is the one who allotted that stand to Mr Ramushu Tawana. A document which appears to be an allotment of a stand to one Ms Ramantsi at Signal Hill, apparently approved by the tribal office, is also attached to the papers. The latter allotment took place in 1995 and the late Kgosikgolo Setumo Montshiwa is said to have countersigned the relevant document. Whether Signal Hill and Lonely Park is the same area or are different but all under the jurisdiction of one headman has not been explained.
 There is yet another material dispute of fact about which there is no clarity. The Deputy Paramount Chief, Mr Morulaganyi Tawana, Mr Kgang Tawana and others supporting the Applicant seem to suggest that it is the duty of the tribal authority, the head office of the tribe for want of a better description, which has the authority to allot stands. This is deduced from the allegation made in support of Mr Morulaganyi Tawana’s right of ownership over 4314. It is alleged that the late Paramount Chief Setumo Montshiwa gave that stand to Mr Morulaganyi Tawana and that he also allotted stands in the Lonely Park area to other people. It is also said that when he did that, he was accompanied by several people including the tribal policeman and Mr Kgang Tawana. This stands in sharp contrast to the understanding of the first Respondent who says that the allocation of stands in that area was a matter for the authorities in Lonely Park (as stated in paragraph  of this judgment).
 There is a dispute about the authenticity of the stands allocation register kept by the tribal office. Only a copy, which shows Mr Morulaganyi Tawana as owner of the disputed stand, was filed of record but the original was never produced. There is a need for the production of the original document that shows who was in fact allocated stand No. 4314 in Lonely Park. Probably not just the register but also some evidence by some of those who know how the system works and who was (were) responsible for making entries in the register and on whose instruction(s).
 There is a material dispute of fact with regard to who of Mr Kgang and Mr Ramushu Tawana was the headman of Lonely Park between 1977 and 2003 when Mr Ramushu Tawana died. The question is not who was the hereditary headman at the time, but who was recognised by the tribal authority as the headman of Lonely Park. In other words, who was the effective headman at the time of the allocation of stand No. 4314.
 The current Kgosikgolo has written a letter to the effect that Mr Kgang Tawana has been the headman for Lonely Park since 1977 and was therefore responsible for all matters affecting Lonely Park, apparently including the allocation of stands. On the other hand, the first Respondent contends that her husband was the headman for the area from 1977 until 2003 when he passed on. The findings of a duly constituted Commission of Enquiry are that he is the rightful headman for Lonely Park. They are annexed to the papers. Also annexed to the papers is the document in which a recommendation dated 1992 is made by the Barolong Boo Ratshidi Administration to the Presidency, that the first Respondent’s husband be appointed or recognised as the headman for Lonely Park. This is intended to reinforce the first Respondent’s contention that her husband was at all times material hereto, the headman for Lonely Park, and therefore had the power to allot stand No. 4314 to himself or to her as the case may be.
 It is not clear whether or not Mr Ramushu Tawana, the first Respondent’s husband, was ever allowed to take over as headman of Lonely Park consequent upon the 1992 recommendation by the Tribal Authority that he be recognised by government as headman for Lonely Park. There is also a paucity of information as to when and how Mr Kgang Tawana took over as headman and what his role, if any, was and is in the allocation of stands. Issues relating to the allocation of a stand to Ms Ramantsi, apparently by Mr R. Tawana in 1995 may have to be explained. Clarity is required on the question whether or not the Paramount Chief’s allocation would prevail over the allocation made by a headman or the Chairman of the Land Allocation Committee or what the correct position is.
 This is by no means an exhaustive list of the areas of concern. Clearly, there are material disputes of fact which can only be satisfactorily resolved by evidence and cross-examination of those giving evidence. Information is also insufficient to allow a final decision to be taken now in this matter.
 In the result, the following order is made:
“a) The application is postponed to a date to be urgently arranged with the Registrar and/or the Judge President of this Division for the hearing of oral evidence;
b) The issues to be resolved at such hearing are set out below:
(i) was Mr Morulaganyi Tawana or the first Respondent the owner of stand No. 4314 Lonely Park at the time it was sold to the Applicant;
(ii) is the original Lonely Park land allocation register existent and, if so, who does it reflect as the owner of stand No. 4314;
(iii) was a headman or the Chairperson of the Lonely Park land allocation committee empowered to allot stand No. 4314 Lonely Park to the first Respondent or her late husband without any intervention or assistance whatsoever by the tribal office;
(iv) did the paramount chief have the power and authority to lawfully allot stand No. 4314 Lonely Park to Mr Morulaganyi Tawana?
(v) if it had already been allotted by the headman or the Chairman of the Land Allocation Committee, which allocation would prevail;
(vi) who was the de facto headman of Lonely Park between 1992 and 2003?
(vii) when did that person take over and how was that takeover regularised by the tribal authority or government, as the case may be?
(viii) was there a land allocation committee in the tribal office between 1992 and 2003? If so, who were the members and what do they know about the controversial allocation?
c) The evidence to be adduced at the aforesaid hearing shall be that of any witnesses whom the parties or either of them may elect to call, subject, however, to such directives as the judge President might give or to what is provided below;
d) Save in the case of any persons who have already deposed to affidavits in these proceedings, neither party shall be entitled to call any person as a witness unless:
(i) it has served on the other party, at least 10 days before the date appointed for the hearing, a statement by such person wherein the evidence to be given in chief by such person is set out; or
(ii) the Court, at the hearing, permits such person to be called despite the fact that no such statement has been so served in respect of his evidence.
e) Either party may subpoena any person to give evidence at the hearing, whether such person has consented to furnish a statement or not;
f) The fact that a party served a statement or has subpoenaed a witness shall not oblige such party to call the witness concerned;
g) Within 30 days of the making of this order, each of the parties shall make discovery on oath of all documents relating to the issues referred to above, which documents are, or have at any time been, in possession or under control of such party;
h) Such discovery shall be made in accordance with Rule 35 of the Uniform Rules of Court and the provisions of that Rule with regard to the inspection and production of documents discovered shall be operative;
i) The costs of the hearing of the application are to be determined by the Court which hears the postponed application.”
JUDGE PRESIDENT OF THE HIGH COURT
DATE OF HEARING : 22 MAY 2008
DATE OF JUDGMENT : 03 JULY 2008
COUNSEL FOR APPLICANT : ADV N. GUTTA
COUNSEL FOR RESPONDENTS : ADV A.J. SWART
ATTORNEYS FOR APPLICANT : SMIT STANTON INC.
ATTORNEYS FOR RESPONDENTS : GURA TLALETSI INC.