Manyaku Maria Thulare v Morwamohube Ernest Thulare & Others

The case arises from a succession dispute following the death of King Victor Thulare III of the Bapedi Nation on 6 January 2021. Thulare III had been formally recognized as king on 3 April 2020 but died without a candle wife or heir. Two competing factions emerged within the royal family. The appellant, Manyaku Maria Thulare (the queen mother and candle wife of the previous king), claimed to have been identified as acting queen at a meeting on 21 February 2021 attended by six close relatives of Thulare III. The first and second respondents, representing a larger group of 46 persons including paternal uncles, aunts, half-brothers and siblings, claimed that Morwamuhube Ernest Thulare (ME Thulare), a half-brother of Thulare III, was identified as acting king at a meeting on 28 February 2021. Five consolidated applications were heard in the high court, which found in favor of ME Thulare and dismissed the queen mother's counter-application.

• Who constitutes the 'royal family' under Bapedi custom for purposes of identifying an acting king or queen when a king dies without a candle wife or heir?
• What is the process under Bapedi custom for identifying an acting monarch in such circumstances?
• Who are 'immediate relatives of the ruling family' and 'other family members who are close relatives of the ruling family' as contemplated in the statutory definition?
• Whether common wives of the deceased king form part of the decision-making structure?
• The role of seniority and rank in the identification process under Bapedi custom
• Whether legitimacy, genealogy or lineage affect eligibility to participate in the identification process?
• Whether the high court properly determined issues of customary law without expert or oral evidence?

1. The appeal was upheld with no order as to costs. 2. The matter was remitted to the Limpopo Division of the High Court for hearing of oral evidence before a different judge (excluding any judge who had previously dealt with the matter). 3. The court specified detailed issues to be determined through oral evidence, including: (a) who constitutes the royal family under Bapedi custom; (b) the process for identifying an acting monarch; (c) the role of seniority and rank; and whether these are affected by legitimacy, genealogy or lineage. 4. Parties may lead expert and other factual evidence. 5. The high court must issue directives on process and timelines. 6. Costs in the high court proceedings to be determined at the conclusion of the oral evidence hearing.

When a court is required to determine issues of customary law, particularly regarding the composition of a royal family for purposes of traditional leadership succession, it cannot do so without proper evidence. Where there are material disputes of fact concerning what customary law requires, oral and expert evidence must be heard. The statutory definition of 'royal family' in traditional leadership legislation (which refers to persons identified 'in terms of custom') requires evidence-based determination of the applicable customary practices of the specific community concerned. Courts may not pronounce on the content or requirements of customary law without primary source evidence to guide such determination. Disputes about the identification of acting traditional leaders under customary law require evidence-based resolution and cannot be determined on application proceedings alone where factual disputes exist.

The court made several non-binding observations: (1) It noted that it made no difference whether the Framework Act or the TKL Act applied as the amendments were immaterial to the issues in dispute. (2) The court declined to grant interim relief securing the queen mother's position pending the remittal, noting that the high court was already seized with interim arrangements and it would not be appropriate for the Supreme Court of Appeal to intervene in those contested proceedings. (3) The court noted that both parties agreed there should be no order as to costs given that, although the appeal was partially successful, there was no ultimate winner or loser at this stage. (4) The court observed that prior to the appeal hearing, the queen mother had obtained an ex parte interim order and a certificate of recognition from the Premier of Limpopo, which was being opposed by ME Thulare.

This case is significant in South African customary law jurisprudence as it reinforces the fundamental principle that courts cannot determine issues of customary law without proper evidence. It emphasizes the need for expert and oral evidence when interpreting and applying customary law, particularly in traditional leadership succession disputes. The judgment clarifies that the statutory definition of 'royal family' in traditional leadership legislation requires determination by reference to the specific customs of the relevant community, and that this is a factual enquiry requiring evidence. The case illustrates the proper procedural approach when material disputes of fact exist regarding customary practices, affirming that such disputes cannot be resolved on the papers but require oral evidence. It also demonstrates the court's commitment to ensuring that customary law is properly ascertained and applied rather than assumed or inferred.