Maxwele Royal Family & Another v The Premier of the Eastern Cape Province and Others

Until 2008, the late Mr Mzimtsha Maxwele was the headman of Zimbane. Upon his death, he was survived by his wife, Mrs Nomthandazo Maxwele, and one minor child, Asiphe Solanga Maxwele (the second appellant). The Maxwele Royal Family (MRF, the first appellant) identified Asiphe as the successor to the headmanship in terms of s 18 of the Traditional Leadership and Governance Act 4 of 2005 (EC Act of 2005). Mrs Maxwele was appointed as regent in accordance with s 21 of the EC Act of 2005 because Asiphe was only 19 years old at the time. On 26 January 2017, while the regent was still in office, the MEC for the Department of Co-operative and Traditional Affairs (the second respondent) instructed the Sangoni Royal Family (fourth respondent) to identify an acting headman to replace the regent. The MEC advised Mrs Maxwele that her term as acting headwoman had expired and instructed her to vacate office within 30 days. Baxolele Maxwele (third respondent) was subsequently identified, recognised, and appointed by the Premier (first respondent) on 20 August 2020 as the acting headman of Zimbane, despite Asiphe having attained majority. The appellants brought a review application to set aside the decisions to appoint Baxolele. The Eastern Cape High Court, Mthatha, dismissed the application. The appellants appealed to the Supreme Court of Appeal with leave of the high court.

• Whether the identification, recognition and appointment of the third respondent as acting headman of Zimbane was lawful
• Whether the MEC and Premier could lawfully recognise and appoint another headman when the identification of the second appellant as successor in 2008 remained extant and had not been set aside
• Whether the high court erred in finding that the Maxwele Royal Family was not a valid legal entity and that Ms Maxwele lacked locus standi to depose to the founding affidavit
• Whether the high court erred in finding that the electoral system rather than the hereditary system applied in Zimbane for appointing headmen

The appeal was upheld with costs, including costs of two counsel where employed. The costs were to be paid by the respondents jointly and severally, the one paying the others to be absolved. The order of the high court was set aside and replaced with an order declaring the second respondent's decision to appoint the third respondent as acting headman of Zimbane Administrative Area, Mthatha unlawful, and reviewing and setting aside that decision. The respondents were ordered to pay the costs of the application jointly and severally, the one paying, the others to be absolved.

Where a successor to a traditional leadership position (headmanship) has been identified in terms of the applicable statutory framework (s 18 of the Traditional Leadership and Governance Act 4 of 2005) and that identification has been accepted by the relevant administrative authorities (as evidenced by the appointment of a regent pending the successor's majority in terms of s 21), that identification constitutes an extant administrative decision that remains valid unless and until it is set aside through lawful administrative processes. In the absence of such identification being set aside, the Premier and MEC cannot lawfully recognise another identified headman nor purport to appoint such person to the position of headman or acting headman. Any decision to recognise and appoint another person in such circumstances is unlawful and subject to review and being set aside.

The Court made important observations about terminology and proper statutory interpretation. It noted that there is no provision in the EC Acts of 2005 and 2017 for "appointment" of a headman by government functionaries. The relevant legislation provides for "recognition" of the headman by the Premier, rather than the MEC. This distinction is important as it reflects the constitutional framework wherein traditional leaders are identified through customary processes and then recognized by the state, rather than being appointed by the state. The Court also expressed concern about the contradictory orders made by the same high court judge on the same day - one compelling consideration of Asiphe's recognition (case no 1234/2020) and another rejecting the review application on grounds inconsistent with that order. The Court described this as "surprising" and "perplexing", noting that the order in case 1234/2020 necessarily entailed positive findings on issues regarding the status of the MRF and Ms Maxwele's locus standi and authority, which contradicted the findings in the review judgment.

This case clarifies important principles regarding the recognition and appointment of traditional leaders in South Africa. It emphasizes that under the Traditional Leadership and Governance Act framework, government functionaries (Premier and MEC) recognize headmen identified by royal families through customary processes, rather than appointing them. The case establishes that once a successor has been identified through the statutory process and this identification has been accepted (evidenced by the appointment of a regent pending the successor's majority), that identification remains valid and cannot be ignored or bypassed without being formally set aside through lawful administrative processes. The case also reinforces the principle that administrative decisions cannot be ignored or overridden informally - they must be properly reviewed and set aside if they are to be nullified. The judgment protects the integrity of customary succession processes and prevents arbitrary interference by government officials in traditional leadership matters.