Mkono and Another v MEC for Co-operative Governance and Traditional Affairs, Eastern Cape and Others

Following the death of Nkosana Velile Mkono, a succession dispute arose regarding the headmanship of the AmaNdanya community. The deceased left a will nominating the first applicant as successor, but the will was contested and not administered insofar as communal land was concerned. Different factions within the community recognised different candidates: the first applicant was recognised at a family meeting in April 2018, while another faction supported the third respondent. Numerous litigations followed. By consent order in February 2021, the parties agreed that the MEC for Co-operative Governance and Traditional Affairs would investigate who, between the first applicant and the third respondent, was the suitable candidate for headmanship. The MEC appointed a panel which, after a broader investigation into customary law and practices, recommended recognition of the fourth respondent (the first-born son of the first wife) as headman. The applicants challenged the lawfulness of the panel’s appointment and its outcome. Their main application was dismissed with costs, prompting this application for leave to appeal.

Leave to appeal to the Full Court of the Eastern Cape Division was granted. Costs were ordered to be costs in the appeal.

The judgment is significant for clarifying the threshold for granting leave to appeal under section 17 of the Superior Courts Act and highlights judicial oversight over administrative investigations in traditional leadership disputes. It underscores the importance of adherence to the scope of consent court orders, particularly in matters involving customary law and traditional succession.