Nxumalo v President of the Republic of South Africa and Others

The applicant, Mr Mpisane Eric Nxumalo, lodged a claim with the Commission on Traditional Leadership Disputes and Claims (the Commission) for the restoration of the kingship of the traditional community of amaShangana and for recognition as its king. The Commission conducted hearings and heard evidence that the amaShangana kingship had been formed around 1828, grew into an "empire", but disintegrated around 1894 or 1897, before the critical date of 1 September 1927. The Commission completed its report on 21 January 2010, dismissing the applicant's claim on the basis that the kingship had been destroyed before 1 September 1927 and the applicant had not shown good cause for its restoration. On 21 January 2010, the report was delivered to the President. The Traditional Leadership and Governance Framework Act (Framework Act) was amended by the Traditional Leadership and Governance Framework Amendment Act (Amendment Act), which came into effect on 25 January 2010. The old Commission ceased to exist on 31 January 2010. In July 2010, the President communicated his acceptance of the Commission's report, and by Presidential Minute 407 of 3 November 2010, recognized certain kingships but not that of amaShangana. The applicant brought a review application in the High Court to set aside both the Commission's decision and the President's decision. The High Court dismissed the application, and the Supreme Court of Appeal dismissed his application for condonation for late filing of a petition for leave to appeal.

• Whether the President's decision was lawfully made under the correct legislation
• Whether the President should have acted under the Framework Act or the new Act
• Whether the decision in Sigcau v President of the Republic of South Africa and Others applied to the present case
• Whether the High Court correctly showed deference to the Commission's decision
• Whether the Commission erred in finding that the amaShangana kingship had disintegrated before 1 September 1927

1. Leave to appeal is granted. 2. The appeal against the order of the High Court concerning the President's decision is upheld and that order is set aside and replaced with the following order: "The first respondent's decision or notice is set aside." 3. The appeal against the order of the High Court concerning the decision of the Commission on Traditional Leadership Disputes and Claims is dismissed. 4. There is no order as to costs.

The binding legal principle is that when a public functionary purports to exercise power under legislation that does not confer that power on the functionary at the relevant time, the exercise of that power is unlawful even if other legislation does confer such power. Specifically, where the Commission on Traditional Leadership Disputes and Claims made a decision under the Traditional Leadership and Governance Framework Act (Framework Act) before its amendment, the President was obliged to implement that decision under the Framework Act and not to make a fresh decision under the amended Act. The President's power under the Framework Act was limited to implementing the Commission's decisions, not making his own decisions. Acting under the wrong Act renders the President's decision unlawful and subject to being set aside. Additionally, courts should show deference to the decisions of specialist administrative bodies established by Parliament with expertise in their designated fields, particularly where such bodies are required to apply customary law and have members with expertise in traditions and customs. Factual findings by such specialist bodies will only be set aside if shown to be unreasonable or irrational.

The Court observed that although the applicant achieved partial success in having the President's decision set aside, this success was of no consequential value to him because the real decision he wanted overturned – that of the Commission dismissing his claim to the kingship – remained intact. The Court noted that the applicant could not be said to have achieved substantial success, which informed the decision to make no order as to costs. The Court also noted that in Sigcau, the result was not only that the Commission's decision stood but also that the applicant's review application in respect of the Commission's decision remained undecided and pending before the High Court, though this aspect was not explicitly ordered in that case. The judgment implicitly recognizes the historical complexities of traditional leadership structures and the disintegration of kingdoms during the colonial period, acknowledging that the scattering of communities across modern national boundaries (South Africa, Zimbabwe, and Mozambique) affects claims to traditional leadership.

This case is significant in South African law as it clarifies the proper application of the Traditional Leadership and Governance Framework Act and its amendment, particularly concerning the timing and applicability of transitional provisions. It reinforces the principle established in Minister of Education v Harris that a functionary who exercises power under the wrong legislation acts unlawfully, even if another Act confers such power. The judgment also upholds the principle of deference to specialist administrative bodies with expertise in customary law and traditional leadership matters. The case demonstrates the Constitutional Court's approach to traditional leadership disputes and the importance of applying the correct legal framework. It follows and applies the precedent in Sigcau v President, establishing consistency in the Court's approach to similar cases arising from the same legislative transition. The judgment balances administrative law principles with the sensitive area of traditional leadership and customary law, showing respect for specialist bodies while maintaining judicial oversight of administrative action.