Saziso Mkono and Gibisela Traditional Council v MEC for Co-operative Governance and Traditional Affairs, Eastern Cape and Others

The passing of Nkosana Velile Mkono created a succession dispute within the AmaNdanya community. The deceased left a will nominating the first applicant as his successor and purporting to bequeath communal land. The will was not administered regarding land as the deceased had no authority over Tribal Authority land. A faction of the community recognized the third respondent as the rightful successor, while on 2 April 2018 the first applicant and siblings from the second wife's lineage held a meeting under chairpersonship of Ms Nomawonga Mapipa (aunt/udadobawo) recognizing the first applicant as legitimate Headman. The third respondent challenged this recognition. On 9 February 2021, parties obtained a consent order (Case No. 4048/2020) staying proceedings pending investigation by the first respondent (MEC) to determine the suitable candidate for Headmanship between the first applicant and third respondent. The MEC appointed a panel which interviewed interested parties. The investigation revealed that according to customs and traditional values of AmaNdanya, inkulu (first-born son of the first wife) qualifies as successor. The panel recommended and the MEC recognized the fourth respondent as the traditional leader. The applicants sought to set aside this decision, arguing the MEC's appointment of the panel was unlawful and that the April 2018 resolution recognizing the first applicant should remain valid.

• Whether the first respondent's decision to recognize the fourth respondent as traditional leader should be set aside
• Whether the appointment of the panel by the first respondent was lawful
• Whether the resolution of 3 April 2018 recognizing the first applicant as Headman should remain lawful
• Whether the panel exceeded the scope of the court order by investigating and recommending the fourth respondent when the order only contemplated investigation between the first applicant and third respondent
• Whether leave to appeal should be granted

1. The application for leave to appeal to the Full Court, Eastern Cape Division is granted. 2. Costs shall be costs in the appeal.

In an application for leave to appeal under Section 17 of the Superior Courts Act, leave may be granted where there are compelling reasons why the appeal should be heard, even if prospects of success are uncertain. A compelling reason exists where an administrative panel appointed pursuant to a consent order to investigate succession between two identified candidates ultimately recommends and leads to recognition of a third candidate not party to the original dispute, raising questions about whether the panel exceeded the scope of its mandate as defined by the court order.

The court observed that the investigation conducted by the first respondent was comprehensive and fair, interviewing all interested parties. The court noted that according to the history of customs, traditional values and customary law of the AmaNdanya community, inkulu (the first-born son of the first wife) qualifies to be appointed as successor. The court also observed that the will purporting to bequeath communal land was not administered on the land issue because the deceased had no authority to administer land falling under the Tribal Authority. The court remarked that declaring the MEC's appointment of the panel unlawful would be absurd since the process resulted from a consent order agreed between the parties.

This case addresses important issues at the intersection of customary law, traditional leadership succession, and administrative law in South Africa. It raises questions about the scope and interpretation of court orders in traditional leadership disputes, particularly whether an administrative investigation can exceed the parameters of a consent order by recognizing a candidate not originally contemplated by the parties. The case also touches on the tension between testamentary succession, family determinations, and customary law principles (such as the inkulu principle) in determining traditional leadership. It demonstrates the complexity of traditional leadership disputes and the role of provincial authorities in investigating and determining succession disputes under the Traditional Leadership and Governance Framework Act.