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[1]          This application has its genesis in a protracted dispute about the recognition of the Kgoshi (Traditional Leader) of the Babirwa BaGa Mamadi traditional community (Mamadi Community). Mr Madidimalo Kislon Mamadi (first applicant) and the Mamadi Royal Family (second applicant) applied in the High Court of South Africa, Limpopo Division, Polokwane (High Court) to review and set aside a decision of the Premier of the Limpopo Province to recognise Mr Aborekwe Thomas Mamadi, the fifth respondent, as acting Kgoshi of the Mamadi Community.[1] They also applied to review and set aside the recommendations of the Commission on Traditional Leadership Disputes and Claims, which found that the first applicant did not have a claim to the position of Kgoshi.

[2]          The High Court dismissed the application with costs.[2] It is against this decision that the applicants seek leave to appeal to this Court. The essential basis of the High Court’s decision was this: the matter involves disputes of fact, irresoluble on the papers;[3] these disputes of fact were reasonably foreseeable and the application should therefore have been brought as an action,[4] and, in any event, the applicants failed timeously to apply for a referral to oral evidence;[5] and no referral was warranted, because oral evidence was unlikely to disturb the balance of probabilities in favour of the applicants.[6] Leave to appeal was refused by the Supreme Court of Appeal.

[3]          The application raises a crisp question of procedure: where disputes of fact, irresoluble on the papers, arise in a review application, what approach should a court adopt? More specifically, how does rule 6(5)(g) of the Uniform Rules of Court – which vests a court with a wide discretion in applications in which disputes of fact arise[7] – interact with rule 53, which regulates review proceedings?