THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1176/2021

In the matter between:
MAXWELE ROYAL FAMILY

FIRST APPELLANT
ASIPHE SOLANGA MAXWELE

SECOND APPELLANT
and
THE PREMIER OF THE EASTERN
CAPE PROVINCE

FIRST RESPONDENT
MEC FOR THE DEPARTMENT OF
CO-OPERATIVE AND
TRADITIONAL AFFAIRS

SECOND RESPONDENT
BAXOLELE MAXWELE

THIRD RESPONDENT
SANGONI ROYAL FAMILY

FOURTH RESPONDENT

Neutral citation: Maxwele Royal Family & Another v The Premier of the
Eastern Cape Province and Others (Case no 1176/2021)
[2023] ZASCA 73 (24 May 2023)
Coram:
DAMBUZA
AP,
NICHOLLS
and
GOOSEN
JJA
and
NHLANGULELA and MALI AJJA
Heard:
9 March 2023
Delivered: 24 May 2023

Summary: Administrative
law
–
review
of
appointment
of
a
headman/headwoman – validity of the appointment in dispute – decision to
appoint the third respondent set aside.

________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Eastern Cape Division of the High Court, Mthatha (Notyesi
AJ, sitting as court of first instance):
1 The appeal is upheld with costs, including the costs of two counsel where so

employed; such costs to be paid by the respondents jointly and severally, the

one paying the others to be absolved.
2 The order of the high court is set aside and replaced with the following order:
‘(a) The second respondent’s decision to appoint the third respondent as acting
headman of Zimbane Administrative Area, Mthatha is hereby declared unlawful
and accordingly reviewed and set aside.
(b) The respondents are ordered to pay the costs of the application jointly and
severally, the one paying, the others to be absolved.’
________________________________________________________________
JUDGMENT
________________________________________________________________
Nhlangulela AJA (Dambuza AP, Nicholls and Goosen JJA and Mali AJA
concurring):
The parties
[1] The first appellant is the Maxwele Royal Family (the MRF), which is
described as ‘a core customary institution or structure comprising immediate
relatives of the ruling family and other family members who are close relatives
of the ruling family’. It exercises authority within Khwenxurha Location,
Zimbane in Mthatha (Zimbane). The second appellant is Asiphe Solanga
Maxwele (Asiphe), an adult male and a member of the first appellant.1 He resides

1 First names are used because some of the persons referred to in this judgment share the same surname. No
disrespect is intended.

at Zimbane. The first respondent is the Premier of the Eastern Cape Province (the
Premier) who is responsible for recognising chiefs and headmen/headwomen who
have been identified to serve in traditional communities of the province of the
Eastern Cape. The second respondent is the Member of the Executive Council for
the Department of Co-operative and Traditional Affairs (the MEC). The third
respondent is Baxolele Maxwele (Baxolele), an adult male of Khwenxurha. The
fourth respondent is the Sangoni Royal Family (the SRF). It is composed of
members of Sangoni Royal House. It exercises authority in the Qokolweni
Administrative Area, Mthatha. Its senior member (Chief Sangoni) presides over
the Qokolweni-Zimbane Traditional Council, a structure that was established in
terms of s 6 of the Traditional Leadership and Governance Act 4 of 2005 (the EC
Act of 2005).

Introduction
[2] This appeal arises from the judgment of the Eastern Cape Division of the
High Court, Mthatha (the high court) which dismissed with costs an application
to review the decisions made by the MEC. In terms of the impugned decisions,
Baxolele was appointed as the acting headman of Zimbane. The matter comes to
this Court on appeal with the leave of the high court. The appeal turns on the crisp
question of whether the identification, recognition and appointment of Baxolele
as acting headman of Zimbane was lawful.

Background
[3] Until 2008, the late Mr Mzimtsha Maxwele (Mzimtsha) was the headman
of Zimbane. At the time of his death, Mzimtsha had one wife, Mrs Nomthandazo
Maxwele (Mrs Maxwele). The two of them had one minor child, namely, the
second appellant, Asiphe. Subsequent to the death of Mzimtsha, the MRF
identified Asiphe as the successor to the headmanship, in terms of s 18 of the EC

Act of 20052. Mrs Maxwele was identified and duly assumed the position of
regent in accordance with the provisions of s 21 of the EC Act of 20053 as Asiphe
was 19 years old at the time. This state of affairs endured until 20 August 2020
when the MEC appointed the third respondent as acting headman of Zimbane
under Qokolweni Traditional Council, effectively the same position in which Mrs
Maxwele was a regent at the time. On 26 January 2017, whilst the regent was still
in office, the MEC instructed the SRF to identify an acting headman to replace
the regent. Accordingly, Baxolele was recognised and appointed by the Premier.4
At the same time, the SRF advised Mrs Maxwele that she was removed from
headwomanship with immediate effect for the reason that her term as acting
headwoman had expired.

[4] The appellants brought an application to review and set aside the decisions
of the MEC. The application was opposed. Ms Ntombekhaya D. Maxwele (Ms
Maxwele), the chairperson of the MRF, deposed to the founding affidavit. She

2 The provisions of s 18 of the EC Act of 2005 read as follows:
‘(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
(b)  the Premier must, subject to subsection (5), by the notice in the Gazette, recognise the person so identified
by the royal family as an iNkosi or iNkosana, as the case may be.
(2) Before a notice recognising an iNkosi or iNkosana is published in the Gazette, the Premier must inform the
Provincial House of Traditional Leaders of such recognition.
(3) The Premier must, within a period of thirty days after the date of publication of the notice recognising an iNkosi
or iNkosana issue to the person who is identified in terms of paragraph (a)(i), a certificate of recognition.’
3 The provisions of s 21 of the EC Act of 2005 read as follows:
‘Recognition of regents -
(1) Where a royal family has identified the successor to the position of iKumkani, iNkosi or iNkosana who is a
minor in terms of applicable customary law or customs and advised the Premier, the Premier must: -
(a) within a reasonable time, by notice in the Gazette, recognize the person so identified by the royal family
as a regent;
…
(3) The Premier must review the recognition of a regent -
(a) at least once every three years, and
(b) immediately after the successor has attained the age of majority.’
4 The provisions of s 18 of the EC Act of 2005 were replaced by s 23 of the EC Act of 2017 in identical terms.

traced the history of Maxwele Royal House.  It was common cause that until his
death, Mzimtsha was the hereditary headman of Zimbane and that Mrs Mawele
was appointed as Regent because of Asiphe’s minority status.

[5] On 26 January 2017, whilst the regent was still in office, the MEC
addressed a letter to the SRF instructing it to identify an acting headman to replace
the Regent. On the same day the MEC advised Mrs Maxwele that the term of her
regency had expired and gave her 30 days to vacate the office. The MEC
explained that the reason for the termination of her regency was the expiry of the
three-year term of Regency as prescribed under ss 22(1)(a) and (b) of the EC Act
of 20055. There were also allegations made that she had caused instability within
the Zimbane community. That conduct, it was contended, disqualified her from
continuing to act as a headwoman. On 8 January 2019, the MEC addressed a letter
to Mrs Maxwele confirming that she was removed from office. Baxolele was
identified as Acting Headman and his appointment as such with effect from 12
June 2020 was confirmed by the MEC on 20 August 2020.  Mrs Maxwele retorted
that the termination of her appointment and the recognition of Baxolele as a new
acting headman violated the provisions of ss 26(1)(a) and (b) of the EC Act of
2017.

[6] Aggrieved by the decisions of the respondents, the appellants launched the
review proceedings seeking an order that the decision of the Premier and MEC to
appoint Baxolele be reviewed and set aside (Case no 2990/2020). It also appears
from the record that further application proceedings had been launched by the

5 Subsections 22 (1)(a) and (b) of the EC Act of 2005, reading in identical terms as ss 26(1)(a) and (b) of the EC
Act of 2017, which read as follows:
‘Persons acting as iKumkani, iNkosi or iNkosana –
(1) A royal family may identify a suitable person to act as iKumkani, iNkosi or iNkosana as the case may be,
where: —
(a) a successor to the position of a traditional leader has not been identified by the royal family concerned;
(b) the identification of a successor to the position of iKumkani, iNkosi or iNkosana is being considered and not
yet resolved;…’.

appellants under case no 1234/2020. In that application the appellants sought an
order to compel the Premier and MEC to recognise Asiphe as the headman so that
he would commence his official duties as he had since attained the age of
majority. Apart from the order that was granted in case no 1234/2020, there are
no further details of that application in the record.

[7] In the review application to which this appeal relates, the respondents
challenged Ms Maxwele’s authority to depose to the founding affidavit on the
basis that the MRF was not a valid legal entity. Baxolele and the SRF contended
that the Qokolweni-Zimbane Traditional Council should have been joined in the
review application. They also asserted that the review application was premature
to the extent that the appellants had failed to refer the dispute(s) to mediation as
envisaged in the provisions of Rule 41A of the uniform rules of the high court. In
addition, they took issue with the appellants’ failure to file the record of the
impugned decisions. They also maintained that there was an irresolvable dispute
of facts that must have been foreseen by the appellants.

[8] In justifying his appointment as acting headman, Baxolele asserted that in
Zimbane, the electoral system, as opposed to the hereditary system, had always
been applied in appointing headmen. He refuted the allegation made by Ms
Maxwele that Asiphe’s position as an eldest male issue in Maxwele Royal House
was the qualifying factor for his appointment as the headman.

In the high court
[9] The high court dismissed the review application on four principal bases,
namely that:
(a) Ms Maxwele had neither the locus standi to bring the application, nor the
authority to depose to an affidavit on behalf of the MRF;

(b) the establishment of the MRF was invalid to the extent that its members
constituting were not of royal blood;
(c) there was no resolution in terms of which Asiphe was identified as the
headman; and
(d) in Zimbane, the procedure for appointment of a headman is the public ballot
system, rather than the hereditary system.

[10] The court found that the MRF is not a royal family because Zimbane is an
administrative area and not a traditional community recognised in terms of s 2 of
the Traditional Leadership and Governance Framework Act 41 of 2003 (the
Framework Act)6. For that reason, it was not qualified to identify a headman. It
held that the SRF, as the royal family with authority over the entire Qokolweni-
Zimbane traditional community, held the authority to identify headmen for all the
communities within its jurisdiction, including Zimbane. The court upheld the
respondents’ contention that the first appellant was not a legal entity.

In this Court
[11] For the reasons that follow, the judgment of the high court cannot stand.
First, it was not in dispute that the demise of Mzimtsha in 2008 led to the
identification of Asiphe as the successor in terms of s18 of the EC Act of 2005
and the processes provided for therein. Mrs Maxwele’s regency was founded on
this identification. Further, the MEC was involved in the 2008 process, which, in
essence, meant that he accepted the underlying reason for the regency. Had it not
been for the fact of the minority status of Asiphe, the Premier would have been
compelled in terms of the provisions of s 18(2) of the EC Act of 2005 to inform
the Provincial House of Traditional Leaders of such identification and then

6 Section 2(1) of the Framework Act reads:
‘(1) A community may be recognised as a traditional community if it –
(a) is subject to a system of traditional leadership in terms of that community’s customs; and
(b) observes a system of customary law.’

publish, in the Gazette, a notice recognising such identification. Thereafter, in
terms of s 18(3) of the EC Act of 2005, the Premier would have been compelled
to issue a certificate of recognition in favour of Asiphe.

[12] In the record, Asiphe’s date of birth appears as 13 July 1989. He had,
therefore, long attained majority when the MEC instructed the SRF to identify an
acting headman and when Baxolele was recognised as such. If the term for Mrs
Maxwele’s regency had expired, the Premier and MEC could not simply ignore
the identification of Asiphe which remained extant. Both the identification of an
acting headman and the recognition of Baxolele as such had no lawful basis.

[13] Counsel for the Premier and MEC conceded that the appointment of Mrs
Maxwele as regent proceeded on the basis of an acceptance of the recognition of
Asiphe as the successor to headmanship. The consequence of such acceptance is
that there existed an administrative decision or act which preceded the
appointment of the regent. Counsel conceded that in the absence of such
administrative conduct being set aside both the MEC and Premier could not
lawfully recognise another identified headman nor purport to appoint such person
to the position of headman or acting headman. Counsel accordingly conceded,
correctly so, that the decision to appoint Baxolele must be set aside.

[14] At the hearing of this appeal, our attention was drawn to the fact that the
review in this case served before same judge who, on the same day, granted the
order in case no 1234/2020 in terms of which the Premier and MEC were
compelled to consider and decide Asiphe’s recognition as the headman of
Zimbane. It was not in dispute before us that the order in case no 1234/2020
compelled the Premier and MEC to consider and decide Asiphe’s recognition as
the headman of Zimbane. The context in which the order in case no 1234/2020
was granted is not apparent from the record. However, the fact that a full-scale

hearing of the review application proceeded before the same judge who had just
granted the order compelling a decision on Asiphe’s nomination is surprising.
The reasons for rejecting Asiphe’s nomination by the same court in the review
application are perplexing, given that the order in case no 1234/2020 entailed a
positive finding on issues regarding the status of the MRF and Ms Maxwele’s
locus standi and authority to participate in the review proceedings.

[15] A further issue that requires comment by this Court is the reference in the
record, especially in the correspondence by the MEC to the ‘appointment’ of the
third respondent. It is important to highlight that there is no provision in the EC
Acts 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.7

Conclusion
[16] To conclude, the MEC’s (and the Premier’s) decisions to recognise the
identification, and appoint Baxolele in the face of the identification of the second
appellant in 2008, which resulted in Mrs Maxwele’s regency, is unlawful. In
addition, the order of the high court in case no 1234/2020, in effect, disposed of
the preliminary issues raised in the review application. The order of the high court
must be set aside. There is no reason why costs should not follow the result.

Order
[17] In the result, the following order is made:

7 Sections 9, 11, 13, and 14 of the Framework Act; see also s 3 of the Traditional and Khoi-San Leadership Act 3
of 2019 and relevant provincial legislation, in this instance, ss 18 & 21 of EC Act of 2005 and s 23 of the EC Act
of 2017.

1 The appeal is upheld with costs, including the costs of two counsel where so

employed; such costs to be paid by the respondents jointly and severally, the

one paying the others to be absolved.
2 The order of the high court is set aside and replaced with the following order:
‘(a) The second respondent’s decision to appoint the third respondent as acting
headman of Zimbane Administrative Area, Mthatha is hereby declared unlawful
and accordingly reviewed and set aside.
(b) The respondents are ordered to pay the costs of the application jointly and
severally, the one paying, the others to be absolved.’

_______________________
ZM NHLANGULELA
ACTING JUDGE OF APPEAL

Appearances

For appellants:

ZZ Matebese SC with Z Badli
Instructed by:

A S Zono & Associates, Mthatha

Honey Attorneys, Bloemfontein

For first and second respondent:
M Gwala SC with LX Mpiti

Instructed by:

State Attorney, Mthatha
State Attorney, Bloemfontein

For third respondent:

S Sintwa

Instructed by:

Chris Bodlani Attorneys, Mthatha

Webbers Attorneys, Bloemfontein

For fourth respondent:

M Sishuba with N Mdunyelwa
Instructed by:

Potelwa & Co, Mthatha

Ponoane Attorneys, Bloemfontein.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

24 May 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Maxwele Royal Family & Another v The Premier of the Eastern Cape Province and Others (1176/2021)
[2023] ZASCA 73 (24 May 2023)
Today the Supreme Court of Appeal (the SCA) handed down judgment upholding the appeal against
the decision of the Eastern Cape Division of the High Court, Mthatha (the high court). The SCA
furthermore set aside the high court’s order, substituting it with an order declaring the decision of the
MEC Department of Traditional and Co-Operative Affairs (the MEC) as delegated by the Premier of the
Eastern Cape Province (the Premier) to appoint the third respondent, Mr Baxolele Maxwele (Baxolele),
as the Acting Headman of Zimbane Administrative Area, Mthatha (Zimbane) as unlawful.
The factual background is briefly that upon the demise of Mr Mzimtsha Maxwele, the reigning Headman
of Zimbane on 28 April 2008, the first appellant (the Maxwele Royal Family) identified the second
appellant, Mr Asiphe Maxwele (Asiphe), who is the surviving son of the late Headman, as the successor.
On account of the minority status of Asiphe, his mother Mrs Maxwele, was appointed as the Regent to
serve as the Acting Headwoman until Asiphe attained the age of majority.
The Premier, together with the MEC, were involved in the recognition of the Regent. On 26 January
2017, whilst the Regent was still in office, the MEC, exercising power delegated to her by the Premier,
instructed the fourth respondent (the Sangoni Royal Family), exercising authority in Qokolweni-Zimbane
Traditional Council, to identify the Acting Headman for Zimbane as the term of office for the Acting
Regent had expired. Accordingly, the Sangoni Royal Family identified Baxolele as the Acting Headman.
On 20 August 2020, the Premier recognised Baxolele as the Acting Headman, and proceeded to issue
a certificate of recognition in his favour. In challenging the decision of the Premier and MEC, the
Maxwele Royal Family and Asiphe brought a review application before the high court. That application
for review was dismissed. Leave to appeal the review application was granted by the high court.
The SCA, in coming to a conclusion, found that the decision of the high court was wrong for the reasons
that, inter alia: (a) In terms of s 18 of the Eastern Cape Traditional Leadership and Governance Act 4

of 2005, the appointment of the Regent was an administrative act that was inextricably linked to the
identification of Asiphe as the successor to headmanship; (b) when the Premier recognised Baxolele
as the Acting Headman, both the regency of Mrs Maxwele and identification of Asiphe had not been set
aside by a court of law; (c) the Premier was still obliged in terms of s 23 of the Eastern Cape Traditional
Leadership and Governance Act 1 of 2017 to recognise Asiphe by issuing a certificate of recognition in
his favour so that he could commence duties as the Headman; and (d) the Premier and MEC could not
lawfully recognise the identification of Baxolele by the Sangoni Royal Family.
In the result, the SCA upheld the appeal and accordingly set aside the order of the high court,
substituting it with an order declaring the decision of the MEC to appoint Baxolele as the Acting
Headman as unlawful.
~~~~ends~~~~