Summary of Judgment

1. Introduction

This was an appeal to the Supreme Court of South Africa (Appellate Division) against an order of the Natal Provincial Division which had reviewed and set aside the appointment of a traditional leader (chief, “nkosi”) and had granted relief in favour of the unsuccessful contender for the chieftainship. The proceedings originated as an application (motion proceedings) brought by Bhekuyise Ephraim Ngwane (the respondent on appeal) against the KwaZulu government (later the Government of the Province of KwaZulu-Natal, the first appellant) and Zwelakhe Albert Ngwane (the second appellant).

The dispute concerned the lawfulness of the KwaZulu cabinet’s decision to appoint Zwelakhe as chief of the Mnqobokazi tribe in the Ubombo area of KwaZulu/Natal, and whether that decision should be set aside. The respondent sought an order setting aside Zwelakhe’s appointment and declaring the respondent to be chief, alternatively directing the government to appoint him.

In the court a quo (Hurt J), the application succeeded and Zwelakhe’s appointment was set aside with costs. The present appeal, brought with leave, challenged that outcome. The Appellate Division upheld the appeal and substituted an order dismissing the application with costs.

2. Material Facts

The late Chief Msongelwa became chief of the Mnqobokazi tribe in 1941. Two of his sons later competed to succeed him: Zwelakhe (the eldest son of the chief’s third wife) and Bhekuyise (the eldest son of the chief’s fifth wife). It was common cause that the late chief was elderly, frail, and with failing eyesight when succession became an issue, and that he decided in 1989 to relinquish the chieftainship.

A material, undisputed aspect drawn from documentation in the tribal files at Ulundi was that in 1945, when the chief married Zwelakhe’s mother, the chief made a declaration to the native commissioner designating her as his chief wife. The judgment treated this as significant within customary-law indicators of succession, namely that the eldest son of the chief wife would be regarded as the natural successor.

The sequence thereafter reflected shifts in the late chief’s stated preferences. In February 1990, the chief caused a letter to be written to the Ubombo magistrate requesting attendance at a tribal meeting at which the chief proposed to nominate Bhekuyise as successor. At meetings held on 27 February 1990 and 7 August 1990, attended by both contenders and Magistrate Schnetler, the chief nominated Bhekuyise. The magistrate kept minutes and forwarded them to Ulundi. Those minutes recorded that, when questioned about the change, the chief said that the reason was known only to him and that it was because he liked Bhekuyise. The minutes further recorded that the magistrate stated he would leave the matter in the hands of the umndeni to find a solution.

On 11 September 1990 a letter dictated by the chief to the tribal secretary was sent to the magistrate. The respondent described this letter as “suspect”, but the court treated it as fact on the motion-paper approach applicable to disputes of fact. In that letter the chief asked for assistance, stating that he had failed to choose between his sons due to conflict and asking the authorities to choose or do what they considered right.

A further letter dated 9 January 1991, later confirmed as authentic by the chief to the succeeding magistrate (Magistrate Nieuwoudt), stated an earnest request that Zwelakhe be entrusted with the position of chief urgently, and that the KwaZulu Government entrust him “in my presence to avoid clash among my family.”

On 19 February 1991 the KwaZulu cabinet resolved to appoint Zwelakhe as the successor. That decision was conveyed to the tribe at a meeting with Magistrate Nieuwoudt in June 1991. In March 1991, shortly before the chief’s death, the magistrate met the chief and the chief again expressed preference for Zwelakhe.

Chief Msongelwa died on 14 May 1991. Notwithstanding a complaint by Bhekuyise to the government in October 1991, Zwelakhe was installed as the new nkosi on 2 November 1991. Bhekuyise then launched the application to set aside the appointment and to secure recognition for himself.

3. Legal Issues

The appeal turned on three issues that had been raised or relied upon in the litigation.

The first issue was a question of law: whether the appointment of a chief under the relevant statutory and constitutional framework was ultra vires if made by the KwaZulu cabinet rather than by the chief minister acting on the advice of the cabinet.

The second issue concerned the application of law to fact, focusing on administrative-law principle: whether the government had unlawfully fettered its discretion by adopting a fixed practice of following the wishes of the incumbent chief and the umndeni in appointing a successor, such that a departure from that practice would render the appointment invalid absent proper consideration.

The third issue concerned the application of administrative-law doctrine to the facts, namely whether the respondent had a legitimate expectation of being heard before a final decision adverse to him was made, and whether procedural fairness required such a hearing. This issue was not advanced on the papers by the respondent but was relied upon by the court a quo as a basis for granting relief.

4. Court’s Reasoning

On the ultra vires point, the court traced the source of the power to recognise or appoint a chief to section 2(7) of the Black Administration Act, 1927, which conferred the power on the Governor-General. It then followed the statutory substitutions and transfers of executive authority through section 3(b) and section 16(1) of the Republic of South Africa Constitution Act, 1961, and the devolution of administrative control in relation to matters within a legislative assembly’s competence under section 22 of the National States Constitution Act, 21 of 1971, including the appointment of chiefs as specified in the First Schedule (Item 27).

The court placed particular emphasis on section 29 of the National States Constitution Act (as amended), which vested executive government in a self-governing territory, in relation to scheduled matters, in a cabinet consisting of a chief minister and other ministers, and applied the provisions regarding an executive council mutatis mutandis to a cabinet. Given that KwaZulu had been established and declared a self-governing territory by proclamation, the court concluded that the power to appoint a chief in KwaZulu vested in the cabinet of the KwaZulu government. On this reasoning, the cabinet’s appointment of Zwelakhe was within power and not ultra vires.

On the alleged fettering of discretion, the court noted that the court a quo had dismissed the complaint on the basis that there was no evidence establishing a fixed procedure or consistent course of conduct adopted by the government in the appointment of chiefs generally. In the appeal, counsel for the respondent did not persist with the contention that this finding was erroneous. The appeal court accepted that concession and treated the fettering argument as correctly rejected for want of evidential foundation demonstrating a binding practice.

The decisive issue was the legitimate expectation ground adopted by the court a quo. The appeal court identified two “preliminary but fatal flaws” in that approach.

First, the doctrine was not relied upon by the respondent in his own case. The court emphasised that neither the correspondence nor the founding or replying affidavits alleged an expectation to be consulted or heard before the appointment. Because the point was not articulated on the papers, the appellants were not alerted to meet it in fact or law. The court accepted the submission that the issue had not been explored in evidence partly because the appellants and their advisers were not attuned to legitimate expectation when the answering affidavits were prepared, and it referred in that context to authority warning against deciding matters on issues not properly raised and ventilated.

Second, even if one assumed that all relevant facts were already before the court, the material did not establish that the government had decided to embark on a formal “enquiry” that would trigger an obligation to ensure a fair and full hearing. The court rejected the notion that there had been a decision by the cabinet, the government, or the magistrates to hold a full-scale enquiry. It treated the magistrates’ involvement as responsive and administrative: Magistrate Schnetler attended the meetings at the chief’s invitation and reported the matter to his department, but this did not amount to initiating a structured enquiry.

The court noted that section 10 of the KwaZulu Act on the Code of Zulu Law, Act 1(5 of 1985 (since repealed), contemplated a structured enquiry if the cabinet, due to a dispute or other circumstance, deemed it desirable. Even in that setting, the cabinet’s power to appoint remained unfettered, although it would be guided by public interest and the interest of the tribe. The existence of a statutory mechanism that could be invoked did not mean it had been invoked in fact, nor did the papers show a factual basis to infer a legitimate expectation of such a hearing.

The court further recorded a concession by the respondent’s counsel that the argument could be advanced no higher than this: the old chief may have created in the respondent an expectation of being chosen, and the government’s conduct through the magistrates may have created in him an expectation of being heard before an adverse appointment. The court held that a mere allegation to that effect was insufficient; in the absence of pleaded reliance and a factual foundation, the legitimate expectation doctrine could not properly be invoked. It concluded that the court a quo ought to have rejected this ground as lacking factual support, in the same way it had rejected the fettering argument.

5. Outcome and Relief

The appeal was upheld with costs. The order of the Natal Provincial Division was set aside and replaced with an order dismissing the application with costs. The practical effect was that Zwelakhe’s appointment as chief was not set aside and remained intact.

Cases Cited

Plascon-Evans Paint Ltd v Van Riebeeck Paint (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A).

Minister of Native Affairs and Another v Buthelezi 1951 (1) SA 766 (D).

Buthelezi v Minister of Bantu Administration and Development and Another 1961 (4) SA 835 (A).

Administrator, Transvaal and Others v Traub and Another [1989] ZASCA 90; 1989 (4) SA 731 (A).

Administrator, Transvaal and Others v Thaletsane and Another [1990] ZASCA 156; 1991 (2) SA 192 (A).

Legislation Cited

Black Administration Act 38 of 1927, section 2(7).

Republic of South Africa Constitution Act 32 of 1961, sections 3(b) and 16(1).

National States Constitution Act 21 of 1971, section 22; section 29 (as amended by section 18 of Act 32 of 1987); First Schedule, Item 27.

KwaZulu Act on the Code of Zulu Law, Act 1(5 of 1985), section 10 (noted as repealed, with reference to KwaZulu Act 9 of 1990).

KwaZulu Act 9 of 1990 (repeal referenced in the judgment).

Proclamation No. R 70 of 1972 (establishing the KwaZulu legislative assembly).

Proclamation No. R 11 of 1977 (declaring KwaZulu a self-governing territory).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Appellate Division held that the power to appoint a chief in KwaZulu vested in the KwaZulu cabinet under the applicable constitutional and statutory framework, and that the cabinet’s appointment of Zwelakhe was therefore not ultra vires. It held further that the allegation that the government had fettered its discretion by following a fixed practice was unsupported by evidence. It also held that the legitimate expectation ground relied upon by the court a quo could not stand because it was not pleaded by the respondent and, in any event, lacked a factual foundation showing a decision to embark upon a formal enquiry or conduct creating an enforceable expectation of a hearing. The appeal was upheld with costs and the application was dismissed with costs.

LEGAL PRINCIPLES

The judgment applied the principle that in motion proceedings, where disputes of fact exist, the court approaches the matter on the accepted rules governing such disputes, as articulated in Plascon-Evans Paint Ltd v Van Riebeeck Paint (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A). In this case, that approach meant that the challenged letter attributed to the chief had to be treated as established for purposes of deciding the application.

The judgment reaffirmed that the statutory power to recognise or appoint chiefs, derived from section 2(7) of the Black Administration Act 38 of 1927, has been treated in authority as unfettered, subject to the applicable constitutional allocation of executive power. The court also reaffirmed that, even where a structured enquiry is contemplated by legislation (here, section 10 of the KwaZulu Code of Zulu Law Act), such a mechanism does not of itself imply that an enquiry has been initiated or that procedural rights associated with such an enquiry are automatically triggered.

On legitimate expectation, the judgment applied the principle that the doctrine requires a proper factual foundation and cannot be invoked on the basis of a mere assertion. It further applied the procedural principle that a court should not decide a matter on a determinative ground not raised on the papers in a way that deprives the opposing party of an opportunity to address the issue on fact and law, particularly in motion proceedings where evidence is confined to affidavits.