Andile J Mabele v Dr Nokuzola Mndende and Others

The applicant, Andile J Mabele, claimed to be heir to the Mabele Royal Family and entitled to be appointed as a senior traditional leader of Mxhelo Administrative Area, Alice. His predecessor, Nkosemntu Mabele, laid a claim to the chieftainship in terms of s 25 of the Traditional Leadership and Governance Act, 2003. The claim was opposed by the third respondent, who asserted that Mxhelo fell under his jurisdiction. The Commission sourced a research report from Mr Peter Garikayi in 2013. A Provincial Committee of the Commission on Traditional Leadership Disputes and Claims investigated the matter and recommended dismissal of the claim on 9 December 2013. The Premier endorsed this recommendation on 27 May 2015. The applicant became aware of the decision on 8 June 2015 and sought to review and set aside the Premier's decision, alternatively seeking the court to substitute the decision and declare him traditional leader of Mxhelo.

• Whether the Provincial Committee's recommendation was tainted by bias against the applicant
• Whether there was procedural unfairness in the Committee's investigation process, particularly regarding a missing submission
• Whether the Committee took irrelevant considerations into account and ignored relevant evidence
• Whether the Premier's decision was legally sound given the applicable legislative framework (the Traditional Leadership and Governance Act as amended in 2009/2010)
• Whether the delay in the Premier's decision constituted a reviewable irregularity
• Whether the decision was rational and properly supported by evidence

The application for review was dismissed. Each party was ordered to bear their own costs in accordance with the Biowatch principle applicable to constitutional litigation against organs of state.

The binding legal principles established are: (1) In reviewing decisions of the Commission on Traditional Leadership Disputes and Claims or its committees, courts must show deference to their specialist expertise and assess rationality rather than substitute their own view of correctness; (2) Under the Traditional Leadership and Governance Framework Act as amended, the provincial committee makes a recommendation and the Premier exercises discretionary decision-making power - this two-stage process is continuous and interlinked, with the recommendation being a jurisdictional fact prerequisite for the Premier's decision; (3) Where the Premier accepts a Committee recommendation, any flaw in the Committee's process taints the entire decision; (4) Both the Committee's recommendation and the Premier's decision constitute administrative action subject to judicial review under PAJA; (5) Review is concerned with the regularity of the decision-making process, not whether the decision was "right" or "wrong" - error of fact is generally not a ground of review unless findings are so irrational as to be unsupported by evidence; (6) The Plascon-Evans rule applies to disputes of fact in review applications seeking final relief.

The court made several non-binding observations: (1) The Biowatch principle regarding costs is appropriately applied in traditional leadership disputes given the nature of the parties and constitutional dimensions; (2) Minor delays in communicating decisions to different parties, absent evidence of prejudice or bias, will not justify setting aside otherwise valid decisions; (3) The non-opposition of an interested party in review proceedings (the third respondent in this case) does not assist an applicant's case where the challenge is directed at the decision-maker's process and rationality; (4) Confirmatory affidavits that merely repeat the applicant's version do not require explicit refutation where the decision-maker has already rejected that version on substantive grounds; (5) Under customary law, a chief's chieftainship resides with him while alive and cannot pass to his son merely because he settles elsewhere, and royalty is by birth not appointment so chieftainship cannot be handed over to those outside the royal lineage even in an acting capacity.

This case reinforces important principles regarding judicial review of traditional leadership disputes in South Africa. It clarifies the applicable standard of review (rationality rather than correctness), the deference courts must show to specialist bodies like the Commission on Traditional Leadership Disputes and Claims, and the limited scope for factual review. The judgment provides important guidance on the operation of the Traditional Leadership and Governance Framework Act as amended in 2009/2010, distinguishing the current framework (where provincial committees make recommendations to the Premier who makes the final decision) from the pre-amendment framework considered in Sigcau and Nxumalo. It confirms that traditional leadership disputes are resolved through a two-stage administrative process and that both the Committee's recommendation and the Premier's decision constitute reviewable administrative action. The case also illustrates the application of customary law principles in determining the validity of chieftainship claims.