THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No.:  658/2017
In the matter between:

LUDIDI LUDIDI

APPELLANT

and

NOLITHA LUDIDI

FIRST RESPONDENT
THE PREMIER FOR PROVINCE OF THE
EASTERN CAPE

SECOND RESPONDENT
EASTERN CAPE HOUSE OF TRADITIONAL LEADERS
THIRD RESPONDENT
HLUBI ROYAL FAMILY                                                               FOURTH RESPONDENT
MANCAPHAYI ROYAL FAMILY                                                      FIFTH RESPONDENT
HLUBI TRADITIONAL COUNCIL                                                         SIXTH RESPONDENT
THE MEMBER OF THE EXECUTIVE COUNCIL FOR

CO-OPERATION GOVERNANCE AND TRADITIONAL

AFFAIRS, PROVINCE OF THE EASTERN CAPE                   SEVENTH
RESPONDENT
THE MINISTER OF CORPORATE GOVERNANCE AND
TRADITIONAL AFFAIRS                                                               EIGHTH RESPONDENT

Neutral citation:
Ludidi v Ludidi & others (658/2017) [2018] ZASCA 104 (23 July 2018)
Coram:

Maya P, Dambuza, Mathopo and Mocumie JJA and Rogers AJA
Heard:

6 March 2018
Delivered:

23 July 2018

Summary:
Customary law – recognition of a traditional leader – regulated by the Traditional
Leadership and Governance Framework Act 41 of 2003 read with provincial legislation, in this
instance the Traditional Leadership and Governance Act, 2005 (Eastern Cape) (Act 4 of 2005) –
right to identify the traditional leader vests solely in the royal family – Premier’s failure to comply

with s 18(2) of the provincial legislation does not render the recognition process a nullity.

__________________________________________________________________
ORDER
__________________________________________________________________
On appeal from: Eastern Cape Local Division of the High Court, Mthatha (Pakade J
sitting as a court of first instance):

The appeal is dismissed with no order as to costs.

__________________________________________________________________

JUDGMENT
__________________________________________________________________
Maya P (Dambuza, Mathopo and Mocumie JJA and Rogers AJA concurring):

[1] This appeal concerns the right to succeed as Inkosi (Chief)1 of the amaHlubi
tribe in Qumbu, Eastern Cape. The main protagonists, the appellant Mr Ludidi Ludidi,
and the first respondent, Ms Nolitha Ludidi, are first cousins. They are respectively
born of the sons of the late Chief Dyubhele Joubert Ludidi, namely the late Messrs
Manzezulu and Manzodidi Charles Ludidi, who were also chiefs of the tribe during
their lifetimes.2

[2] Mr Ludidi challenges Ms Ludidi’s recognition as the Chief of the amaHlubi (the
decision) by the seventh respondent, the Member of the Executive Council for Co-
operation, Governance and Traditional Affairs, Province of the Eastern Cape (the
MEC), pursuant to her identification as such by the fourth respondent, the Hlubi Royal
Family. The Eastern Cape Local Division, Mthatha (Pakade J), dismissed his review
application. In those proceedings he sought an order (a) reviewing and setting aside

1 Defined as a senior traditional leader in s 1 of the Traditional Leadership and Governance Framework Act 41 of 2003.
2 The legitimacy of Chief Manzezulu’s chieftainship is an issue of dispute as explained later in the judgment.

the decision; (b) directing the MEC to recognise him as the Chief of amaHlubi,

alternatively remitting the matter back to the third respondent, the Eastern Cape House
of Traditional Leaders (the House) for investigation and recommendation; and; (c)
ancillary relief. The appeal is with the leave of the court a quo. Only the second
respondent, the Premier of the Eastern Cape Province (the Premier), the Hlubi Royal
Family, and the MEC oppose the proceedings.

[3] It should be stated at the outset that the parties’ affidavits were riddled with
disputes of fact. But a significant portion of the material background evidence was
undisputed and may be summarised as follows. According to the custom and practice
of the amaHlubi, the eldest child from the great or senior house of the royal family ie
born of the great or senior wife, inherits a vacant chieftainship of the tribe. In the
event that the chief and the great wife die childless, a child born of the chief’s ‘right
hand’ wife ie a lower ranking wife where the chief had more than one wife, assumes
the chieftainship. Otherwise the chief’s surviving brothers, in order of seniority,
assisted by the royal family and the tribe, reconstitute the great house by marrying a
royal wife and assuming the chieftainship.

[4] In recent times, this custom has been practised within statutory prescripts in
terms of which a chief’s appointment is confirmed. At the time of Chief Dyubhele’s
death, the nomination and appointment of chiefs in his area of jurisdiction,3 the extent
of their powers and functions, the determination of their remuneration by the
government and other related matters, were regulated by the Transkei Constitution Act
48 of 1963 and the Transkei Authorities Act 4 of 1965.

[5] In line with the relevant custom and law, after Chief Dyubhele’s death, the

3 Which fell under the Transkei homeland.

Hlubi Royal Family and the sixth respondent, the Hlubi Traditional Council (the
Traditional Council), identified and had his eldest son, Manzodidi, installed as the new
chief. The Hlubi Royal Family also arranged a marriage for him to reconstitute the
great house at Nobamba Administrative Area, the royal family’s seat. To that end, it
found him a wife, Princess Nozizwe Mafaku Sigcawu (Mafaku), the daughter of Chief
Nelson Sigcawu of Eastern Pondoland, for whom it paid lobola and arranged a
traditional wedding ceremony. It is from that union, consummated in 1965, that Ms
Ludidi, an only child and the sole surviving member of that great house, was born.
Chief Manzodidi died in November 1978. He was survived by his wife, his then 12
year-old daughter and his brother, Manzezulu. The latter succeeded him as the Chief
of the amaHlubi in 1979 and ruled as such until his death in 2012.

[6] With the advent of democracy in South Africa and the abolition of its
homelands, including Transkei, a new statutory dispensation had come into force by
the time Chief Manzezulu died in October 2012. The Transkeian legislation had been
repealed and the recognition of traditional leaders countrywide was now regulated by
the Traditional Leadership and Governance Framework Act 41 of 2003 (the National
Act), read with the Traditional Leadership and Governance Act, 2005 (Eastern Cape)
(Act 4 of 2005) (the Provincial Act) in the parties’ area of jurisdiction.4

[7] Acting in terms of the Provincial Act, the Hlubi Royal Family identified Ms
Ludidi for recognition as the Chief of the amaHlubi by the Premier. The fifth
respondent, the Mancaphayi Royal Family, identified Mr Ludidi for the same position.
When presented with the conflicting decisions the MEC, to whom the Premier had

4 These are post-democracy national and provincial statutes intended mainly to establish a statutory framework and
norms and standards for traditional leadership and governance that conform to constitutional imperatives.

delegated the function,5 did not recognise either of the candidates. Instead, he referred
the dispute to the House for its recommendation. That did not yield the desired result.
The MEC’s attempts to engage the two royal families to resolve the impasse were
equally unsuccessful. Ultimately, the MEC referred the matter back to the Hlubi Royal
family for its decision.6

[8] After a meeting of the representatives of the Hlubi Royal Family and the
Mancaphayi Royal Family held in late June 2013, it was conveyed to the MEC on
their behalf by the chairperson of the Hlubi Royal Family that Ms Ludidi had been
identified as the next Chief of the amaHlubi. (Incidentally, it was also agreed at that
meeting that to address the appellant’s concern that no one in his father’s household
earned a living, he would be appointed as the secretary of the sixth respondent from
which he would earn a salary to support his family.) Thereafter, on 15 July 2015, the
MEC recognised Ms Ludidi as such chief and issued a recognition certificate to that
effect. He further published the notice of recognition in the Government Gazette in
terms of s 18(1)(b) of the Provincial Act.7  However, he did not inform the House of
the recognition before it was so published as required by s 18(2) of the Provincial Act.

[9] The manner in which the main basis of Mr Ludidi’s review proceedings were
couched in his papers is rather confusing. He alleged ‘a firm, reasonable, genuine and
bona fide substantive legitimate expectation’ that he would inherit the chieftainship as
the eldest son of the queen of the amaHlubi and Chief Manzezulu, who was a
permanent chief and had introduced him to the Traditional Council as his successor

5 In terms of s 34(1) of the Provincial Act, which empowers the Premier ‘subject to such conditions as he or she may
determine in writing, [to] delegate any powers conferred on him or her by this Act, except the power to make
regulations, to a Member of the Executive Council of the Province’.
6 In terms of s 18(4)(c) of the Provincial Act.
7 Which stipulates that ‘[w]henever the position of an iNkosi or iNkosana is to be filled …[t]he Premier must, subject to
subsection (5), by notice in the Gazette, recognize the person so identified by the royal family as an iNkosi or iNkosana,
as the case may be’.  In this instance, the Premier delegated the duty to the MEC in terms of s 34 of the Provincial Act.

based on ‘a well-established traditional custom and practice’. Then he asserted that
his claim to the chieftainship had nothing to do with custom and was based strictly on
the law in terms of which his late father was appointed, ie s 66(1)(c) of the Republic
of Transkei Constitution Act 15 of 1976. (The latter Act replaced the Transkei
Constitution Act 48 of 1963 when the Transkei homeland attained sovereignty in 1976
and was in operation when Chief Manzodidi died.) He also challenged the legitimacy
of the Hlubi Royal Family and its right to identify Ms Ludidi as the next chief and the
process followed by the MEC in effecting the recognition.

[10] The respondents’ answering affidavit was made by the MEC, supported by
members of the Hlubi Royal Family of Nobamba Administrative Area, Mr Sikho
Ludidi, a Hlubi prince and the chairperson of the Hlubi Royal Family and Mr
Ndlelantle Ludidi, a headman of the amaHlubi of that area and a member of the Hlubi
Tribal Authority and currently, the Traditional Council which he chairs. They disputed
the appellant’s claim to the chieftainship on various fronts.

[11] First, they impugned the legitimacy of Chief Manzezulu’s chieftainship.
According to them, his appointment was invalid as it was neither approved by the
royal family, the tribal authority and the tribe itself. Nor was it sanctioned by the State
President as was required by the law applicable at the time. In their view, it was
unnecessary to reconstitute the great house after Chief Manzodidi’s death because he
was survived by his heir, Ms Ludidi. So, they contended, Mafaku should have
assumed the chieftainship, albeit as her daughter’s regent as she in fact sought to do,
until Ms Ludidi attained majority. But her attempts to contest Chief Manzezulu’s
claim to the chieftainship, by demanding a right to succeed her late husband, were
thwarted by Chief Manzezulu’s trickery and she was forced to withdraw her claim.8 It

8 Her claim was formally lodged with the relevant authorities, including the Magistrate, Qumbu and it is documented in
official records as was her subsequent withdrawal and reinstatement thereof.

was alleged that Mafaku was lured by Chief Manzezulu’s agents to a certain house on
the false pretext that she would be meeting her father. There, she was forced to sign a
letter in which she purportedly surrendered her claim to the chieftainship. Her
subsequent formal appeal to the local magistrate to reinstate her claim, in which she
was supported by her father, was not brought to the attention of the royal family and
the tribe at large.

[12] Thus, Chief Manzezulu was surreptitiously designated as the Chief of the
amaHlubi with the assistance of a few members of his coterie with whom he falsely
persuaded the magistrate that he had been unanimously nominated as Chief
Manzodidi’s successor. And, as mentioned above, the respondents contended that not
all the legal requirements for his chieftainship were fulfilled as the State President did
not confirm the appointment, thus rendering it invalid.9 However, the invalid
designation was not challenged thereafter. There were two reasons for this: to avoid
fracturing the tribe and endangering the lives of Mafaku and Ms Ludidi as Chief
Manzezulu had vowed to do anything to ensure that a woman did not lead the tribe
and assume the chieftainship himself.

[13] The respondents contended that apart from Chief Manzezulu’s defective title to
the chieftainship, he had no legal right to identify his successor by anointing his son as
the appellant claimed, even if he was a legitimate chief. This was so because that
power vested solely in the Hlubi Royal Family, which had never conducted itself in

9  In terms of s 45 of the repealed Transkei Constitution Act 48 of 1963 which provided:
‘(1) After the Constitution of the first Cabinet of the Transkei the function of designating paramount chiefs, chiefs and
acting chiefs in respect of any region according to Bantu law and custom shall, subject to the provisions of sub-section
(2), vest in the regional authority concerned subject to confirmation by the State President who may in his discretion
confirm any such designation or refer it back to the regional authority concerned or further consideration.
(2) The creation of any paramount chieftainship or chieftainship shall be confirmed by the President except after
consideration of a recommendation of the Legislative Assembly.’

any manner that would reasonably have laid a basis for the legitimate expectation
asserted by the appellant.

[14] Another matter of contention was which of the two respondent royal families, ie
the Hlubi Royal Family and the Mancaphayi Royal Family, is the rightful royal family
of the amaHlubi vested with the right to identify their chief. It was common cause that
the dispute around Chief Manzezulu’s successor split the royal family into two
factions. The appellant claimed that the Mancaphayi Royal Family was the only
legitimate leadership structure of the amaHlubi which had always administered their
affairs. The Hlubi Royal Family was a recently established structure, formed by his
detractors only after his father’s death ‘merely to deal with the succession of
chieftainship’ of the amaHlubi. There ‘was no formal structure known as the Hlubi
Royal Family because the affairs of the royal family and the amaHlubi tribe were
conducted by the Hlubi Tribal Authority’,10 and then the Traditional Council upon the
promulgation of the Provincial Act, in terms of which traditional councils replaced
tribal authorities.11 But, in the same breath, he referred to the Hlubi Royal Family
which, he stated, appointed his father as the Chief of the amaHlubi and made no
mention of the existence of the Mancaphayi Royal Family at the time.

[15] According to the respondents, the Hlubi Royal Family has existed since time
immemorial as the custodian of the royal family’s lineage and the customs of the
amaHlubi in Qumbu. It has always enjoyed the right to identify the tribe’s chief.
Moreover, the provincial government has, from the beginning, dealt only with the
Hlubi Royal Family and the Hlubi Tribal Authority and later, the Traditional Council,
in relation to the affairs of the amaHlubi.   The provincial government was unaware of

10 Established by the Transkei Authorities Act.
11 In terms of s 28(4) of the National Act which provides that ‘[a] tribal authority that, immediately before the
commencement of this Act, had been established and was still recognised as such, is deemed to be a traditional council
contemplated in section 3 and must perform the functions referred to in section 4 . . .’.

the existence of the Mancaphayi Royal Family until the dispute over the
chieftainship rose.

[16] The court a quo was not persuaded by Mr Ludidi’s contentions and decided the
case on the respondents’ version. It found that the Hlubi Royal Family, which had
identified even Chiefs Dyubhele and Manzodidi, was the rightful royal family. In the
court’s view, the chieftainship remained in Chief Manzodidi’s house even after his
death as ‘he left an issue’ ie Ms Ludidi. In that case, Chief Manzezulu, ‘who was an
illegitimate chief’, ruled merely as the regent of that issue, Ms Ludidi, until she came
of age. The court concluded that Mr Ludidi’s claim to a legitimate expectation of
assuming the chieftainship after his father’s death therefore had no basis and that he
had no legal right to the chieftainship.

[17]  Several grounds of appeal were raised in the appellant’s notice of appeal and
heads of argument. However, the issues which crystallised in argument before us were
whether (a) the appellant’s expectation – that he had an automatic right to the
chieftainship of the amaHlubi upon his father’s death based on the validity of the
latter’s appointment under the Transkei Constitution Act as the permanent Chief of the
amaHlubi – was legitimate; (b) the MEC arbitrarily recognised Ms Ludidi as the Chief
of the amaHlubi in disregard of evidence that she was identified by only one faction of
the fractured royal family and the opposing faction’s recommendation; (c) the MEC
was obliged to afford the appellant a hearing before recognising Ms Ludidi; and (d)
the MEC’s failure to inform the House of Ms Ludidi’s recognition before its
publication in the Gazette nullified the recognition.

[18] The appellant’s counsel rightly conceded at the outset that the court a quo was
right to decide the various material disputes of fact on the respondents’ version, on an

application of the trite principle set out in Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd.12 The appellant’s counsel further conceded, correctly in my view,
that on an application of this principle, it was clear that the Mancaphayi Royal Family
was a recent splinter of the Hlubi Royal Family, formed by the latter’s erstwhile
members who were not direct descendants of Chief Dyubhele and were opposed to
having a female chief. These concessions are devastating to the appellant’s case as
will appear in the discussion which follows.

[19] Regarding issue (a), it seems to me unnecessary to resolve the dispute relating
to the validity of Chief Manzezulu’s appointment as the Chief of the amaHlubi in light
of the view I take of the real issues in this matter. I will therefore assume without
deciding, that Chief Manzezulu was a lawfully appointed permanent Chief of the
amaHlubi and that he indeed ‘identified’ the appellant as his successor to the
chieftainship by introducing him as such to the Hlubi Tribal Authority and the tribe.

[20] It is well to bear in mind that whatever relevance s 66 of the Transkei
Constitution Act,13 on which the appellant relied, may have had for that ‘identification’
no longer obtains as that piece of legislation no longer exists. The issue must be
determined in accordance with the relevant law in force in October 2012 when Chief

12 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-636C.
13 Which read:
‘(1) Subject to the provisions of subsection (2) the power-
(a) to designate or appoint any person as paramount chief, chief or sub-chief, whether in a permanent or in an acting
capacity, or
(b) to institute any paramount chieftainship in addition to the chieftainships mentioned in Schedule 10, or
(c) to institute any other chieftainship of whatever class or status, shall continue to vest in the regional authority
concerned subject to the confirmation of such designation, appointment of institution by the President at his discretion.
(2) The President-
(a)  may refer back to a regional authority any designation or appointment made by such authority under sub-section (1);
and
(b) shall not confirm the institution of any new chieftainship of whatever class or status except upon the recommendation
of the National Assembly.
(3) The appointment in his office of every person who at the commencement of this Act is a paramount chief, chief or
sub-chief (whether in a permanent or an acting capacity) shall be deemed to have been confirmed by the President in
terms of subsection (1).’

Manzezulu died and the chieftainship vacancy arose. This is what the Legislature
contemplated in s 28(1) of the National Act which reads:
‘(1) Any traditional leader who was appointed as such in terms of applicable provincial legislation
and was still recognised as a traditional leader immediately before the commencement of this Act, is
deemed to have been recognised as such in terms of section 9 or 11, subject to a decision of the
Commission in terms of section 26.’

[21] The foremost question which arises is who has the right to choose a Chief of the
amaHlubi? In terms of s 11 of the National Act:
‘(1) Whenever the position of senior traditional leader, headman or headwoman is to be filled –
(a) the royal family concerned must, within a reasonable time after the need arises for any of those
positions to be filled, and with due regard to applicable customary law –
(i) identify a person who qualifies in terms of customary law to assume the position in  question,
after taking into account whether any of the grounds referred to in section 12 (1) (a), (b) and (d)
apply to that person; and
(ii) through the relevant customary structure, inform the Premier of the province concerned of the
particulars of the person so identified to fill the position and of the reasons for the identification of
that person; and
(b) the Premier concerned must, subject to subsection (3), recognise the person so identified by the
royal family in accordance with provincial legislation as senior traditional leader, headman or
headwoman, as the case may be.
(2)(a) The provincial legislation referred to in subsection (1) (b) must at least provide for –
(i)
a notice in the Provincial Gazette recognising the person identified as senior
traditional leader, headman or headwoman in terms of subsection (1);
(ii)
a certificate of recognition to be issued to the identified person; and
(iii)
the relevant provincial house of traditional leaders to be informed of the
recognition of a senior traditional leader, headman or headwoman.’
A ‘senior traditional leader’ is defined in s 1 of the same Act as ‘a traditional leader of
a specific traditional community who exercises authority over a number of headmen or
headwomen in accordance with customary law, or within whose area of jurisdiction a

number of headmen or headwomen exercise authority’.

[22] The Provincial Act is the provincial legislation envisaged in s 11(2) above.
Section 18 thereof provides, in relevant part:
‘(1) Whenever the position of an iNkosi or iNkosana is to be filled–
(a) the royal family concerned must subject to such conditions and procedure as prescribed, within
sixty days after the position becomes vacant, and with due regard to applicable customary law–
(i)
identify a person who qualifies in terms of customary law to assume the
position in question, after taking into account whether any of the grounds
referred to in section 6(3) apply to that person; and
(ii)
through the relevant customary structure, inform the Premier of the
particulars of the person so identified to fill the position and of the reasons
for the identification of that person; and
(a) the Premier must, subject to subsection (5), by notice in the Gazette, recognize the person so
identified by the royal family as an iNkosi or iNkosana, as the case may be.’
The ‘royal family’ is defined in s 1 of the Provincial Act as ‘the core customary
institution or structure consisting of immediate relatives of the ruling family within a
traditional community, who have been identified in terms of custom, and includes,
where applicable, other family members who are close relatives of the ruling family’.

[23] There is no question on the respondent’s evidence, the appellant’s contradictory
version in this regard as described above and his counsel’s concession, read against
these statutory provisions, that the Hlubi Royal Family is a ‘royal family’ as envisaged
in the statutory definition. It comprises Chief Dyubhele’s direct descendants, ie the
immediate relatives of the ruling family, who have maintained its leadership structures
and seat and retained the kernel of the historical royal family. It remains the custodian
of the customs of the amaHlubi and their royal family’s lineage and is the sole
repository of the right to identify the Chief of the amaHlubi. And it is significant that
when it exercises this right, it does not consider only that the candidate is the eldest

child in the great house. It vets the potential candidate against the relevant customary
law. It must also ascertain whether he or she (a) has not been convicted of an offence
with a sentence of imprisonment for more than 12 months without the option of a fine;
(b) does not suffer from a physical incapacity or mental infirmity which, based on
acceptable medical evidence, makes it impossible for him or her to function as such;
and (c) has not committed a transgression of a customary rule or principle, as
contemplated in s 12(1)(a), (b) and (d) of the National Act. The identification is not a
predetermined conclusion as the appellant described.

[24] It follows therefore that Chief Manzezulu had no right whatsoever to identify
his successor.14 In that case the appellant’s expectation had no valid basis as it did not
meet the trite requirements. To qualify as a legitimate expectation, the underlying
representation, which must have been induced by the decision-maker, must be clear,
unambiguous, reasonable, competent and lawful for the decision-maker to make.15
There is not a whit of evidence that the ‘decision-maker’ here, ie the Hlubi Royal
Family, ever made any representation to the appellant that he would become the Chief
of the amaHlubi when his father died. Nor would it have been legally permissible for
it to do so, even on the assumption that Chief Manzezulu made the representation on
its behalf, before the vacancy arose.

[25] But that said, the enquiry does not end there. The consequences of the
dissension within the royal family regarding who should be identified as the tribe’s

14 It should also be mentioned though, for what that may be worth, that even under the provisions of the repealed
Transkei Constitution Act, the power to designate or appoint a chief, vested in the regional authority. So Chief
Manzezulu’s ‘identification’ of his son as his successor would have held no water even under that dispensation.
15  See National Director of Public Prosecutions v Phillips & others 2002 (4) SA 60 (W) para 28; 2001 (2) SACR 542
(W); 2002 (1) BCLR 41 (W); South African Veterinary Council & another v Szymanski 2003 (4) SA 42 (SCA) para 19;
2003 (4) BCLR 378 (SCA); confirmed in Minister of Home Affairs & others v Saidi & others [2017] ZASCA 40; 2017
(4) SA 435 (SCA) para 35; [2017] 2 All SA 755 (SCA).

chief, as arose here, must still be determined. In this regard, s 18(4) of the Provincial
Act provides:
‘Where the Premier has received evidence or an allegation that the identification of a person referred
to in subsection (1) was not done in accordance with the provisions of this Act, customary law or
custom the Premier –
(a) may refer the matter to the Provincial House of Traditional Leaders for its recommendation;
or
(b) may refuse to issue a certificate of recognition; and
(c) must refer the matter back to the royal family for reconsideration and resolution where the
certificate of recognition has been refused.’

[26] The MEC followed precisely these prescripts upon receiving the conflicting
recommendations by remitting the matter to the royal family for reconsideration,
despite his misgivings about the standing of the Mancaphayi Royal Family in the
matter. And, as indicated above, it was not disputed that the two warring factions duly
met and that following their deliberations, the MEC was informed on their behalf that
the Hlubi Royal Family identified Ms Ludidi as the next Chief of the amaHlubi.  It is
therefore incorrect that the MEC paid no heed to the conflicting views regarding the
identified candidate within the royal family. The seeming dispute of fact on the papers
as to whether the recommendation made to the MEC following this meeting
represented an agreed compromise is more apparent than real. The averments of the
Hlubi Royal Family in this respect cannot be dismissed out of hand on the papers and
must be accepted as correct in adjudicating the appeal.

[27] There was no need for the MEC to grant the appellant any hearing as he had
been amply heard by the royal family up to the last meeting, which was attended by
members of his proponents, the Mancaphayi Royal Family. The legislation envisages
that it is in the context of the deliberations of the royal family that differing views,

including those of competing candidates, will be heard. In any event, his views on
the chieftainship were placed before and considered by the MEC. It must be accepted
in the circumstances, therefore, that the identification of Ms Ludidi was lawfully made
by the royal family as envisaged in ss 1 and 18 of the Provincial Act.

[28] The final question is whether the MEC’s failure to inform the House about the
recognition before the relevant notice was published in the Gazette, in breach of s
18(2) of the Provincial Act, nullified the recognition process. The appellant’s counsel
did not pursue this ground with any vigour and conceded that it was not the
appellant’s strongest point. The concession was, in my view, well made.

[29] In terms of s 18(2), which is couched in peremptory terms, ‘[b]efore a notice
recognizing an Inkosi or Inkosana is published in the Gazette, the Premier must
inform the Provincial House of Traditional Leaders of such recognition’. It is so that
the disregard of peremptory provisions of a statute is fatal to the validity of the
proceeding affected.16 But, as this court explained in Nkisimane & others v Santam
Insurance Co Ltd:17
‘[S]tatutory requirements are often categorized as “peremptory” or “directory”. They are well-
known, concise, and convenient labels to use for the purpose of differentiating between the two
categories. But the earlier clear-cut distinction between them (the former requiring exact compliance
and the latter merely substantial compliance) now seems to have become somewhat blurred. Care
must therefore be exercised not to infer merely from the use of such labels what degree of
compliance is necessary and what the consequences are of non or defective compliance. These must
ultimately depend upon the proper construction of the statutory provision in question, or, in other
words, upon the intention of the lawgiver as ascertained from the language, scope and purpose of

16 Schierhout v Minister of Justice 1926 AD 99 at 110.
17 Nkisimane & others v Santam Insurance Co Ltd 1978 (2) SA 430 (A) at 433H-434A. See also, Swart v Smuts 1971
(1) SA 819 (A) at 829C-G; Lupacchini NO & another v Minister of Safety and Security [2010] ZASCA 108; 2010 (6)
SA 457 (SCA); Hubbard v Cool Ideas 1186 CC [2013] ZASCA 71; 2013 (5) SA 112 (SCA); [2013] 3 All SA 387
(SCA) para 10.

the enactment as a whole and the statutory requirement in particular.’

[30] The subject-matter of the prohibition, its purpose in the context of the
legislation, the remedies provided in the event of any breach of the prohibition, the
nature of the mischief it was designed to remedy or avoid and any cognisable
impropriety or inconvenience which may flow from invalidity are all factors which
must be considered when the question is whether it was truly intended that anything
done contrary to the provision in question was necessarily to be visited with nullity.18
In sum, the consequence of the MEC’s omission depends upon the proper construction
of s 18(2), ie considering its words in light of their context and with reference to the
apparent purpose to which it is directed and any relevant background material.19 And
the vital question to ask in that exercise is whether the Legislature intended the breach
to nullify the entire recognition process.20

[31] It is clear from the plain wording of s 18(2) that the House plays no role in the
identification and recognition of a chief. All that is envisaged by these provisions is
that it will be informed of the result of the process before such result is announced to
the public. No provision is made for the MEC to await further input from the House
before proceeding to publish his or her decision. Thus, the prohibition has nothing to
do with the decision itself but is merely directed at the publication of such decision
before the House has been informed thereof. The object of the provisions is simple.
The newly appointed chief becomes a member of and sits in the House as a traditional
leader. It is a matter of common sense that it would be improper for the House to learn

18 Palm Fifteen (Pty) Ltd v Cotton Tail Homes (Pty) Ltd 1978 (2) SA 872 (A) at 885D-G.
19 See Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SCA 593 (SCA) para
18; Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk [2013] ZASCA 176; 2014 (2) SA
494 (SCA) paras 10-12.
20 Nokeng Tsa Taemane Local Municipality v Dinokeng Property Owners Association & others 2010 ZASCA 128;
[2011] 2 All SA 46 (SCA) para 14.

of a new addition to its membership from a public announcement. The requirement of
prior notification to the House is in the nature of courtesy to that body. It can hardly
be concluded in the circumstances that the Legislature intended to unravel the entire
recognition process by reason of a mere failure to observe the contemplated
administrative formality. That would undoubtedly bear a disproportionate, inequitable
and impractical result.21

[32] The appeal must accordingly fail. But I am not inclined to make a costs order in
favour of the successful respondents having regard to the nature of the right asserted
by the appellant in the matter.22

[33] The following order is made:

The appeal is dismissed with no order as to costs.

___________________________________________
M M L MAYA
PRESIDENT OF THE SUPREME COURT OF APPEAL

21 See Pottie v Kotze 1954 (3) SA 719 (A) at 727F-H.
22 Biowatch Trust v Registrar Genetic Resources & others [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR
1014 (CC) paras 23-24.

APPEARANCES:
For Appellant:

Adv. N Dukada SC with
Adv. L Sambudla

Instructed by:

Babe & Talapile Inc, Mthatha c/o

Matsepes Inc, Bloemfontein

For Second, Seventh & Eight Respondents: Adv. A M Bodlani

Instructed by:

State Attorney, Mthatha

For Fourth Respondent:

Adv. A M Bodlani

Instructed by:

SS Nkonyeni Attorneys, Mthatha