Mhlangabezi Raymond Mgijima v The Premier of the Eastern Cape Province and Others

This case concerned a dispute over the chieftainship of the Zulu Traditional Council at Sheshegu, Alice, in the Eastern Cape Province. The appellant (Mgijima) claimed the chieftainship against the fourth respondent (Xabiso Zulu), whose father had held the position from 1992 to 2011. The appellant claimed he was the rightful heir through the Mgijima line dating back to 1835. The Eastern Cape Provincial Committee of the Commission on Traditional Leadership Disputes and Claims investigated the competing claims through a public hearing where both parties presented evidence and historical records. The Committee unanimously recommended dismissal of the appellant's claim, finding that the Zulu line had the hereditary claim to chieftainship and that the Mgijima line were historically headmen, not chiefs. The Premier accepted this recommendation and issued a written decision in October 2013 declaring the fourth respondent had the hereditary claim and dismissing the appellant's claim. The appellant then launched review proceedings in the High Court under the Promotion of Administrative Justice Act (PAJA).

• Whether the Premier's written decision required counter-signature by the MEC under section 140(2) of the Constitution
• Whether the Premier's answering affidavit and confirmatory affidavit should be struck out as inadmissible
• Whether the Premier acted irrationally and in a procedurally unfair manner by not inviting the appellant to make representations before taking the final decision
• Whether the Committee's factual findings were so out of kilter with the evidence as to be irrational
• Whether errors of fact constitute grounds for review under PAJA
• The scope of review jurisdiction versus appellate jurisdiction

The appeal was dismissed. No costs order was made as the respondents did not seek costs.

1. Section 140(2) of the Constitution requires counter-signature of a Premier's written decision by another Executive Council member only if that decision concerns a function assigned to that other member. Where the Premier personally exercises a power vested in her office and does not delegate it, no counter-signature is required. 2. In administrative law review, the court is concerned with whether a decision was procedurally regular or irregular, not with whether it was substantively 'right' or 'wrong' - that is the province of appeals. Except in narrow circumstances, error of fact is not a ground of review. 3. Factual findings of an administrative decision-maker may be reviewed on rationality grounds only if they are so out of kilter with the evidence that they are irrational, meaning there is no rational connection between the evidence and the decision. 4. Where a disputant has been afforded a full and fair hearing before a specialist committee tasked with fact-finding in traditional leadership disputes, procedural fairness does not require that the Premier afford a further opportunity for representations before making a final decision based on the committee's recommendations, particularly where the empowering legislation uses permissive language ("may"). 5. In review proceedings against a public office (not a person), a successor officeholder may properly file affidavits defending the decision of their predecessor, and confirmatory affidavits by the predecessor decision-maker are admissible to address allegations of irrationality or impropriety.

The Court noted, without deciding, that there was a pending appeal in another case involving a similar issue regarding the counter-signature requirement under section 140(2) of the Constitution. The Court also observed that the provincial Traditional Leadership and Governance Act uses permissive language ("may") regarding further representations to the Premier, but did not need to explore the full scope of when such representations might be required as a matter of procedural fairness in different factual circumstances. The Court's discussion of the historical evidence regarding the Hlubi genealogy and settlement patterns at Sheshegu, including references to the works of historians Ngqangweni and Ncwana and various historical records from national archives, while relevant to assessing rationality, constitutes obiter observations on the underlying historical disputes rather than binding legal principles.

This case provides important guidance on: (1) the application of section 140(2) of the Constitution regarding counter-signature requirements for provincial Premiers' decisions - clarifying that counter-signature is only required when a function has been assigned to another Executive Council member, not when the Premier exercises powers personally; (2) the distinction between review and appeal jurisdiction, emphasizing that review concerns procedural regularity rather than correctness of factual findings; (3) the limited circumstances in which errors of fact constitute grounds for administrative review - generally only when factual findings are so irrational as to lack rational connection to the evidence; (4) procedural fairness requirements in traditional leadership disputes, confirming that where a full hearing has been conducted before a specialist committee, further representations to the final decision-maker may not be required; (5) the proper approach to confirmatory affidavits by successor officeholders in review proceedings concerning decisions of their predecessors. The judgment reinforces the limited scope of judicial review of administrative decisions involving factual disputes and specialized knowledge, particularly in the context of traditional leadership matters governed by the Traditional Leadership and Governance Framework Act.